Charitable foundation differs from donations.

By donation, civil law understands a thing or right that is donated (transferred for use) to other persons. The important point is the purpose of the donation. It is defined by law as generally useful.

General purpose must be understood in such a way that the donated item and rights will be used by a sufficiently wide range of people and will benefit them:

1. Social support for a wide range of citizens.
2. Rehabilitation activities for the wards of any organization, without listing persons by name.
3. Assistance to persons who have suffered as a result of natural natural Disasters or disasters.
4. Assistance to activities in the field of education, science, culture, art.
5. Assistance in the maintenance and improvement of areas that play important role in the areas social life, are historical and cultural monuments, natural monuments.

Who can do donation:

• individual;
• legal entity, including commercial and non-profit organizations.

Who is speaking? addressee:

• individuals;
• institutions and organizations various directions(medicine, education, social sphere, religious, charitable, cultural, etc.);
• non-profit organizations;
• subjects civil law. This is the state, constituent entities of the Russian Federation, municipalities.

The law defines donations as things or rights. These include:

1. Movable and immovable property.
2. Cash.
3. Personal items.
4. Houseware.

The donor has the right to establish restrictions on use the gift transferred to him, that is, to determine for what specific purpose it will be used.

Donation and charity: what's the difference?

Despite the similarity of concepts in the legal field, they are quite different:

1. The main difference between a victim is his gratuitousness. If a citizen received something else in return for what was donated, then the transaction is considered compensated and cannot be equated to a sacrifice. Charity is not always provided free of charge.
2. Recipients of charity assistance are already enough. These cannot include religious and political organizations, state.
3. At the same time, the range of what can be transferred on preferential terms with charitable activities wider enough. It includes various services and works.

Donation agreement

Donation agreement is a private situation and is regulated. According to it, the victim in most cases becomes the subject of an oral agreement and personal transfer of the gift. There are 3 important exceptions, requiring written documentation:

1. A legal entity acts as a donor, and the amount exceeds 3 thousand rubles.
2. The donation will be carried out in the future, but in the present there is only an agreement about it.
3. If real estate is transferred as a gift, then there must be state registration new owner.

The legislation does not impose special requirements for the donation agreement. It repeats the standard sample of contracts (you can view and download here:) and displays:

• Subject components of the transaction: donor, receiving party, passport data (information about the organization) of the parties.
• Subject: Describes a sacrifice given as a gift.
• Conditions of transfer: when and how the donation is transferred, what documents accompany the process (transfer of ownership, receipt paper).
• Control: the purposes of use, timing, and reporting procedures for the use of the victim are determined.
• Conditions for changes and termination of the transaction.
• Date of signing, details and signatures (for organizations also seals) of the parties.

How is it different from a gift agreement?

The main difference between donation and gift agreements is that the first contains terms of use of the gift if it is transferred to a citizen. If there is no such clause in the document, it is recognized as a gift agreement.

If the victim is transferred to a legal entity, then the contract may not contain this clause, but the gift must be used in its own way intended purpose. For example, a passenger bus transferred under a donation agreement to kindergarten should be used to transport children, not food.

Another important point related to taxation. Victim not taxable as opposed to a gift:

• if the donation is made by an organization, then it is obliged to calculate and;
• If a gift occurs between individuals, then the recipient pays tax on the gift. This occurs by declaring the gift as income;
• If an individual donates to an organization, the latter pays tax based on the value of the gift.

Donation between legal entities prohibited by law.

Example

A local agricultural organization wants to donate building materials to the budgetary institution Rural School. Conclude a gift agreement prohibits the law, so the director of the agricultural enterprise decides arrange a gift as a donation and determines the purpose of using materials to carry out repairs on school premises.

The donor sets a period for using the gift within calendar year and approves the deadline for reporting on completed work in a year. Construction Materials are transferred to the school, whose director hires a team of workers and redecorates several classrooms. The results of the repairs are recorded and provided to the agricultural enterprise as evidence of the use of the victim for the specified purposes.

That same year, one of the former students, who has become an influential businessman, wants to donate a minibus to the school to transport children. A year earlier, the educational organization received a bus under the regional program and does not need another vehicle.

The school director and the businessman come to an agreement that the former student does not insist on using the car and agrees. The donation agreement will allow the school to sell a minibus and use the proceeds to reconstruct an outdoor sports ground. After transferring the car into the ownership of the school, the organization pays tax on it, but the funds after the sale and payment of the tax are enough for a new sports ground.

Donation procedure

The procedures depend on the form of the donation and the need to conclude a written agreement. The procedure for accepting and making a voluntary sacrifice is contained in.

First of all, only voluntary donations, that is, transferred without external influence, threats, exchange, etc. If organizations accept donations, this is reflected in their documentation in the “Procedure for Making Donations.” This document reflects the purposes for which donations are collected, the timing of the collection and use of collected funds, the conditions and forms of reporting to donors. This is a kind of open agreement that any donor can review and decide to transfer the gift.

Collection of donations can be done using special devices. This donation boxes. They must contain:

• information about the collection, its procedures and a link to documentation;
• a seal that seals the box from illegal intrusion;
• collection time and end date.

The installation of boxes is carried out by agreement with the heads of institutions at their location.

After the end of the collection period, the box is opened by a special authorized commission, which must consist of at least 3 people. An act on the autopsy is drawn up, which states:

1. Time and place of autopsy.
2. Persons present.
3. The collected amount of funds.

The received gifts are transferred to the cash desk of the organization involved in the collection, and then credited to its bank account.

If sacrifice occurs in person, then the donor addresses the person/organization for whose benefit he wishes to make a donation. The terms of the donation are discussed in a personal conversation and, when agreements are reached, are enshrined in the agreement, the form of which was given earlier.

Required:

• passport, if the party to the transaction is an individual;
• title documents, if the participant is a legal entity;
• documents for the donation, which confirm that the owner is truly authorized to dispose of it.

If money is the sacrifice, then also an agreement is concluded. According to it, funds can be transferred in cash, which is confirmed by a receipt, or credited to a bank account using the specified details.

Legislation does not require notarization of the transaction. If the victim was real estate, then you must contact the Registration Chamber to take ownership. Required:

• donation agreement;
• ownership of the object;
• identification document;
• application for transfer of rights and acceptance certificate;
• payment of the state registration fee.

Cancellation of the donation agreement

Like any contract, a donation agreement can be canceled. For this, one condition is sufficient: failure by the recipient to comply with the prescribed conditions for using the gift or a significant violation of these conditions.

The legislation does not provide for automatic cancellation of the contract in in this case. The donor has the right to demand cancellation of the agreement. It happens V judicial procedure according to the claim.

The task of the court is to establish the extent to which the recipient deviates from the terms of use of the received gift and make a decision to cancel the agreement or leave it in force. The court will also determine the intentionality of the donee’s actions.

If the decision to cancel the agreement is made, the recipient party will have to return the previously transferred property or money to the donor.

Conclusion

1. A donation is a special case of donation, but has a number of differences from it in terms of subject composition and goals. Similar differences exist between sacrifice and charity.
2. The transfer of some donations by law must be accompanied by an agreement, one of the clauses of which contains clearly stated purposes for using the funds or property received.
3. There are different donation procedures, which are established depending on the size, type and recipient of the gifts.
4. The agreement can be canceled in a situation where the recipient does not fulfill the terms of the agreement regarding the purpose of the gift.

The most popular question and answer regarding donation

Question: My mother was saved from death in one of the hospitals in our city. In gratitude he paid the head physician a substantial cash gift, asked to use it for the needs of the hospital. The doctor refused to accept him, citing illegality. Are there legal ways to thank healthcare workers?

Answer: We recommend that you draw up donation agreement Money budgetary institution . Please note that in such an agreement you need to specify the purpose of the donation, that is, what you are transferring the funds for. This could be the purchase of medicines, equipment, repairs, etc. Based on the results of using the money, the management will report to you, and will also not have problems with the law.

List of laws

Samples of applications and forms

You will need the following sample documents.

I am interested in the difference between charity and donation and whether VAT is charged on them in non-profit organizations (charitable foundation)? Thank you.

1) Some differences between charity and donation:

Various regulatory documents. Donations are regulated by the provisions of Ch. 32 of the Civil Code of the Russian Federation, and charity – also by the special Law of August 11, 1995 N 135-FZ “On charitable activities and charitable organizations”;

A charitable donation is not necessarily gratuitous, but a donation is necessarily a gift;

Various transmitted objects. Thus, work and services can be performed as part of charity, but cannot be donated. Accordingly, volunteers can only work within the framework of a charity and not a donation agreement.

Different goals. The purposes of the charitable transfer are specific specific purposes specified in paragraph 1 of Art. 2 of Law N 135-FZ, and the purposes of the donation are generally beneficial, that is, broader and more vague;

Various hosts. In particular, the state political parties And religious organizations cannot accept charitable assistance, but have the right to accept donations.

2) VAT. Transfer of goods (performance of work, provision of services), transfer property rights(including donations) within the framework of charitable activities is not subject to VAT if:

Objects are transferred completely free of charge;

The organization did not refuse the VAT benefit;

Receipt of assistance is documented.

The rationale for this position is given below in the materials of the Glavbukh System

1. Article:Benefits for charitable organizations

Charitable organizations also have benefits. It is installed sub. 12 clause 3 art. 149 of the Tax Code of the Russian Federation. It states that in the territory Russian Federation transfer of goods (performance of work, provision of services) free of charge within the framework of charitable activities in accordance with the Federal Law “On Charitable Activities and Charitable Organizations”, with the exception of excisable goods, is not subject to VAT *.

However, the courts are of a different opinion, according to which the provision of services within the framework of charitable activities is possible unilaterally without concluding an agreement, on the basis of relevant orders and letters (resolution of the Federal Antimonopoly Service of the East Siberian District dated August 18, 2005 No. A58-5044/04F02-3966/05- S1, West Siberian District dated April 17, 2006 No. F0410064/2005(20874-A27-37)).

Thus, if we adhere to the position set out in judicial practice, it will be enough for the organization to confirm the legality of applying the benefits under subsection. 12 clause 3 art. 149 of the Tax Code of the Russian Federation, submit to the tax authority the relevant orders and letters confirming the implementation of charitable activities, but such a position will probably have to be defended in court.

Non-profit organizations: legal regulation, accounting and taxation. Elvira Mityukova

2. Article:How to pay income tax, VAT and property tax for a non-profit organization

As in the case of income tax, the obligation to pay value added tax arises only if the NPO is engaged in entrepreneurial activity. There is no need to calculate VAT on target revenues that are not related to payment for goods sold or works or services and are used for their intended purpose *.

In addition, if a non-profit organization received non-operating income from these funds, VAT will not be required.

Is a non-profit organization entitled to deduct VAT? Yes, but only if goods or works are purchased at the expense of commercial activities and strictly used in business. VAT paid to suppliers when purchasing goods, property or work using earmarked funds is not deductible *.

And the amount of NPO input tax is included in the cost of goods, property or work. This is indicated by subparagraph 1 of paragraph 2 of Article 170 of the Tax Code of the Russian Federation.

Non-profit organizations are entitled to VAT benefits. All cases are listed in Article 149 of the Tax Code of the Russian Federation *. For example, tax exempt gratuitous transfer property rights within the framework of charitable activities. This is stated in subparagraph 12 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation. Or sales of services related to social protection population (subclause 14.1, clause 2, article 149 of the code).

And all the same, if NPOs apply benefits, they must issue invoices, but without the allocated tax amount. Otherwise, the organization should transfer the specified tax to the budget.

When it comes to registering real estate or other valuable property, it is important to first understand all the intricacies of transferring ownership rights in order to do everything correctly and legally competently in order to avoid all sorts of risks and misunderstandings. There are quite a few methods of alienation of property, so it is important to take this point into account when choosing the best option, since each of them has its own advantages and disadvantages, and a list of certain restrictions established by the legislation of the Russian Federation. In this regard, citizens are often interested in what the differences are between a gift agreement and a donation. Despite the fact that donation is a type of gift, some differences still exist between them.

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What is donation

Alienation of property or a valuable thing by gift involves the complete transfer of ownership rights to a third party free of charge. Immediately after the conclusion of the gift agreement, the legal successor acquires the rights and obligations that are assigned to him as a result of accepting the gift. The agreement comes into force after registration of the document with the local authorities of Rosreestr.

Characteristic features of the donation procedure

A distinctive feature of a gift is that the transaction is gratuitous, that is, the legal successor becomes the legal holder of the gift completely free of charge. The donor has no right to demand anything from the recipient in return - neither money, nor the exchange of property, nor the provision of any services.

As soon as ownership rights are transferred to the donee, he can dispose of the gift at his own discretion, regardless of the opinions and wishes of the donor. If the donor, when drawing up a gift agreement, puts forward any conditions in relation to the donee, which he must fulfill in order to receive property as a gift, such an agreement has every reason to invalidate it and cancel the transaction.

Pros and cons of giving

Despite the fact that the fundamental principle of donation is gratuitousness, this method of transferring property rights has its advantages and disadvantages.

Table. Pros and cons of giving.

Attention! The gift agreement, when it is drawn up by unrelated persons, obliges the recipient of the gift to pay personal income tax (NDFL) in the amount of 13% of the transaction for residents and 30% for non-residents.

What is a donation

The concept of the term “donation” is defined by the Law of the Russian Federation, namely Article 582 of the Civil Code of the Russian Federation, which states that a donation is a separate form of the act of donation, which is burdened with a generally beneficial purpose, that is, made to achieve a specific goal. The transaction agreement clearly defines the intended purpose of the donated valuables, therefore property transferred to a third party in this way can be used only for the purposes strictly specified in the agreement, which causes some inconvenience and limits the capabilities of the successor. This feature allows you to easily distinguish between a gift agreement and a donation agreement. Most issues related to the latter are regulated by Article 32 of the Civil Code of the Russian Federation, since the very fact of sacrificing property and things is considered a donation.

When a donor makes a donation, as well as when giving a gift, the only main principle- gratuitous. The property is transferred to a third party free of charge. The donor transfers property rights absolutely free of charge and has no right to demand any remuneration from the successor for the gift.

Attention! If the person making the donation refuses to establish a specific purpose in the agreement, then this action will be considered not a donation, but an ordinary gift, since the intended purpose is the main difference between a donation and a gift.

Article 582 of the Civil Code of the Russian Federation establishes the obligation to determine the intended purpose of donated property only for individuals, and if we're talking about O legal entities, then they are not obliged to determine its purpose when making a donation, but if they wish, they can take advantage of this opportunity. At this moment, the possibility of determining the intended purpose cannot be regarded as a counter-obligation of the recipient of valuables (property, money, valuable papers etc.). Due to the fact that it is not possible to ignore the generally beneficial nature of the donation, this act is committed exclusively at charitable ambushes. This, in turn, led to the fact that the circle of eligible subjects for making a donation was noticeably narrowed.

If the recipient of the benefit violates its intended purpose, the transaction may be declared invalid, followed by its cancellation and the transfer of the donated object to the former owner. The legislation of the Russian Federation does not provide for or exercise control over the fulfillment of the intended purpose established by the contract, therefore it is more expedient and logical to consider this issue within the framework of the concluded contract. But federal legislation provides for cases when it is possible to change the initially determined purpose of a donated gift. These are situations when:

• the person making the donation agrees with the need to make amendments and changes to the intended purpose;
• there is no possibility to use the donation for the purpose established in the agreement;
• the donor has died (individual) or has been liquidated/reorganized (legal entity).

If the person who donated the property is no longer alive, then the decision to change the assignment can be made exclusively in court.

Characteristics of the donation

Home distinctive feature The donation of valuables by donation is the establishment by the donor of the intended purpose for things or rights of claim that he sacrifices in favor of a third party (individual or legal). It is important that the purpose of the donation be exclusively for general benefit.

Attention! Federal law prohibits donations to commercial organizations, since commercial interests and goals a priori cannot be generally beneficial, therefore such a transaction is subject to recognition as invalid and can be annulled.

This article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem, contact our consultant absolutely FREE!

According to Russian legislation, the donation should always be made to meet the needs of:

• social layers;
• the general population;
• public organizations and movements.

Regardless of the fact that the recipient of the property or things sacrificed is only one specific person - the donee, many should benefit from it. A donor can be anyone, if he does not belong to one of the categories that, according to the Civil Code of the Russian Federation, do not have the right to take part in a gift and donation transaction, namely:

• a young child under 18 years of age;
• incompetent citizen;
• proxies of the above-mentioned citizens.

Paragraph 1 of Article 582 of the Civil Code of the Russian Federation also establishes the circle of those persons who have the right to accept benefits from donors, that is, to participate in the donation transaction:

• subjects of the Russian Federation;
• state;
• religious organizations;
• educational and cultural organizations and foundations;
• charitable foundations;
• public organizations;
• citizens;
• museums;
• budgetary organizations;
• social protection institutions.

This list of subjects is exhaustive, there are no other options, so if the donation agreement is drawn up in favor of someone who does not belong to one of the above categories, it may be considered invalid.

The transaction is a bilateral agreement, so the donor must obtain the consent of the second party, that is, the donee, since as a result of the concluded agreement, the latter, along with the rights to the property, receives an encumbrance in the form of an obligation to use it strictly for its intended purpose. If the donee does not agree with the terms, he has every right to refuse this benefit and not sign the contract.

To receive a donation, the recipient does not need to obtain special permission from anyone (higher organizations, local authorities, etc.). An important condition drawing up a donation agreement is to specify the subject of the transaction, that is, what is transferred to a third party free of charge. The criteria for specifying the object of the donation are regulated by paragraph 2 of Article 572 of the Civil Code of the Russian Federation. If the contract does not specifically describe the object of the transaction, it may be declared invalid.

Advantages and disadvantages

According to civil law, a donation is the same transaction involving two parties who sign an agreement giving them rights and obligations, and therefore also has its advantages and disadvantages.

Table. Pros and cons of donating.

As can be seen, there are more disadvantages than advantages for the donee, since he will also have to fulfill the obligation arising from the agreement, as well as provide a full account of the use of the benefit transferred to him as a donation.

Important! Despite the fact that a donation is a gratuitous act of transfer of property rights, a donation differs from a gift in that it is not regarded as profit and is not taxed, regardless of the relationship between the donor and the recipient.

Key Differences Between Gifting and Donation

To understand the difference between sacrifice and gift, it is necessary to analyze their similarities and differences according to certain criteria.

Table. Difference between gift and donation.

As you can see, there is not so much difference between a gift and a donation, since these are two agreements that are almost identical in meaning and content. The main distinguishing factor between them is that the donated values ​​are a gift with an encumbrance in the form of an obligation to use the property strictly for a generally useful purpose, determined by the agreement. Unlike giving, donation is always charity.

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In sponsorship, of course, there is a certain amount of charity, but still, the sponsor is not selfish. The sponsored person receives money, for example, to hold an event; the sponsor, in turn, receives advertising for his company or a specific person. As a rule, this is a fairly positive advertisement, since the name of the sponsor is mentioned only with positive side. At the same time, philanthropists do not seek to advertise their good deeds to the public, which means that a wide audience will not appreciate such actions, since they simply will not know about them. Therefore, the first difference between charity and sponsorship is audience reach.

Another important difference is the choice of object, that is, the benefactor can provide assistance only in those areas public life, which are regulated by the legislation of the Russian Federation, the sponsor is free to choose to whom and for what purposes to allocate money or other valuables.

According to the Law “On Advertising”, sponsorship is equated to advertising and, like any advertising, is paid for by the advertiser (sponsor), that is, the relationship between the sponsor and the sponsored presupposes mutual economic interest and full cooperation. Charity excludes such interest and is one-sided in nature, without binding the recipient in any way in relation to the donor. The recipient is only required to spend the funds received for pre-agreed purposes.

Also, do not forget that sponsorship is a means of marketing, while charity may have absolutely nothing to do with it. In this sense, sponsorship can be considered a PR tool and used to form and improve the image.

So, the main difference between sponsorship and charity is the principle of gratuitousness. The philanthropist acts “for himself,” the sponsor acts to acquire “social capital” and certain image characteristics.

Still, sponsorship and charity are tools of social partnership aimed at bringing profit to the organization, albeit of an intangible nature (in the case of charity). However, it is worth recognizing that sponsorship, when used correctly, still has more possibilities to create a favorable image and promote the company.

Russian legislation quite clearly defined the concept of “charitable activity”, less specifically - “sponsorship”, and “patronage” was not defined at all. Accordingly, fuzzy legal status activities leads to taxation issues. And the active practice of using a word as a sign of two different and, sometimes, opposing types of activity creates a lot of semantic problems. Therefore, we constantly encounter the fact that when using the concept of “sponsorship,” journalists, consultants, officials, activists of non-profit organizations, economists and accountants mean by this charity and philanthropy. And vice versa!

The Law of the Russian Federation “On Advertising” (1995) interprets sponsorship as “a contribution by a legal or individual (sponsor) (in the form of provision of property, results of intellectual activity, provision of services, performance of work) to the activities of another legal or individual (sponsored) on the terms of distribution by the sponsored advertisement about the sponsor and his products. A sponsored contribution is recognized as payment for advertising...” Unfortunately, this edition of the definition cannot be called successful. The law actually classifies a sponsor as an advertiser, and information about him as an advertisement. As for the final “invective” of the article: “The sponsor has no right to interfere in the activities of the sponsored person,” it is unlikely that under these conditions the history of sponsorship in general would have taken place. modern Russia. And, nevertheless, it exists - although it is short-lived, it is interesting.

Be that as it may, one thing is obvious: real charity and sponsorship are two different things.

Charity does not provide a return adequate to the invested funds: the investment in the construction of the temple, amounting to hundreds of thousands of dollars, will never pay for itself from an economic point of view.

Mimicking sponsorship as a charity can do more harm to a company than good. The lines here are very thin, so one wrong step - and you are no longer a benefactor, but a clumsy cynic.

So, sponsorship, unlike charity, expects a tangible return on the money and effort spent. Sponsorship support is formalized in an agreement that reflects the mutual obligations of the parties - the sponsor and the recipient. This is a kind of bilateral commercial agreement with equal benefits for both parties.

Modern sponsorship is viewed primarily as a commercial investment in the prestige of a company, product, or brand.

Concepts such as charity and sponsorship are often confused, thereby violating the logic of turning to a potential source of sponsorship funds. The reason is simple - a request to provide charitable assistance is motivated differently than a request to provide sponsorship funding for a project or event on a reimbursable basis.

Let's briefly compare two definitions from Wikipedia and other sources:

Charity- is providing selfless help to those in need. A special difference between charity and other types of financing is the free choice by the benefactor of the time, type and place of assistance. In addition, the composition of such assistance is determined by the benefactor based on his vision of needs, which often means material financial assistance or provision of services. In part, patronage is a type of charity.

Sponsorship- this is targeted financial support for a subject (legal entity or individual) for the promotion and implementation of commercial projects of other entities. Sponsorship involves mutual achievement of goals within the framework of one project, although the goals of partners, as a rule, differ. An important feature of sponsorship is the mutual obligations of the parties and the presence of certain conditions, i.e. contractual relations are essentially a transaction. Sponsors can be considered business cooperation within the framework of a project, the initiator and organizer of which is one of the parties.

As can be seen from the definitions and follows from practice, charity and sponsorship have only one common aspect - one party provides the other with a certain resource. This is where the similarities end. For example, within the framework of charitable assistance, as a rule, only the receiving party realizes its goals, with the exception of large-scale socially significant projects. Thus, there is no need to talk about the commercial component within the framework of charitable activities. Businesses are rarely interested in such projects, which can lead to negative results. Applying for free and unconditional charitable assistance has nothing to do with sponsorship.

Sponsor agency COMPRED.COM