Charitable foundation differs from donations. What is the difference between donation and donation?

Institutions tend to receive free assistance from legal entities and individuals as part of charitable activities, under gift agreements, donations, and also to enlist the support of sponsors. How these types of transactions fundamentally differ will be discussed in the article.

Donation

Special signs. The gift agreement is concluded according to the rules established by Chapter. 32 of the Civil Code of the Russian Federation. Under this agreement, one party (the donor) transfers or undertakes to transfer the property to the other party (the donee) free of charge (clause 1 of Article 572 of the Civil Code of the Russian Federation).

Donation is also considered gratuitous transfer property right (claim) to oneself or to a third party, gratuitous release from property obligations to oneself or to a third party.

As you can see, the object of the gift is either things or property rights. Money in accordance with Art. 128 of the Civil Code of the Russian Federation are also things, so donating them from a legal point of view is no different from donating any other property. At the same time, the gratuitous performance of work or the provision of services is not recognized as a gift; such agreements are not regulated at all by the Civil Code of the Russian Federation.

The main feature of a gift agreement, which distinguishes it from compensated agreements, is the absence of any consideration (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 19, 2006 No. 11659/06).

Legal restrictions. The Civil Code of the Russian Federation provides for a number of restrictions on donations. This list is given in Art. 575 of the Civil Code of the Russian Federation. Thus, donation is not allowed (with the exception of gifts worth no more than 3,000 rubles):

• employees of educational, medical, social and other similar organizations citizens receiving treatment, support or education there, spouses and relatives of these citizens;
• persons holding state (municipal) positions, state (municipal) employees, employees of the Bank of Russia in connection with their official position or the performance of their official duties (with the exception of gifts at protocol events);
• in relations between commercial organizations. However, there is no such ban for commercial organizations, including state and municipal institutions, has not been established.

Therefore, institutions can both present expensive gifts to any legal entities, and to receive gifts of any value from them.

Another limitation is established by paragraph 1 of Art. 576 of the Civil Code of the Russian Federation. It says that the organization to which the thing rightfully belongs operational management, has the right to donate it only with the consent of the owner (unless otherwise provided by law). The clause makes a reservation that this restriction applies to gifts worth more than 3,000 rubles.

In conjunction with the norms of paragraphs. 2, 3 tbsp. 298 of the Civil Code of the Russian Federation, this means that an institution, without the consent of the owner, can donate the property that it has the right to dispose of independently.

Form of agreement. Clause 1 of Art. 574 of the Civil Code of the Russian Federation provides the opportunity to conclude a gift agreement orally, but only if the thing is transferred to the donee at the same moment. If the parties agree to transfer things in the future, the agreement will have to be recorded on paper. In addition, a written agreement is drawn up in a situation where the donor is a legal entity and the value of the gift exceeds 3,000 rubles, as well as when donating real estate.

The ownership of the thing passes to the donee in the manner established by agreement of the parties. If the agreement does not say anything in this regard, then the right passes after the transfer of movable things (clause 1 of Article 223 of the Civil Code of the Russian Federation) or after registration of ownership of real estate (clause 1 of Article 131 of the Civil Code of the Russian Federation).

Refusal of a gift and cancellation of donation. The recipient may refuse it at any time before the gift is transferred to him (Clause 1, Article 573 of the Civil Code of the Russian Federation).

The donation agreement will be considered terminated. The refusal must be drawn up in the same way as the agreement itself (clause 2 of Article 573 of the Civil Code of the Russian Federation): if the gift agreement was concluded in writing, the refusal will also have to be drawn up on paper; the refusal of the real estate gift agreement is subject to state registration.

But returning a gift to the donor after receiving it is not so easy. Since the special rules on this matter in Ch. 32 of the Civil Code of the Russian Federation, no, you need to be guided general provisions about termination of the contract. By virtue of Art. 450, 451 of the Civil Code of the Russian Federation, the contract can be terminated:

• by agreement of the parties;
• in case of a significant violation of the contract by the counterparty;
• when there is a significant change in circumstances.

For the same reasons, the donor can also terminate the contract.

In addition, he has the right to demand through the court the cancellation of the donation if the donee’s handling of a gift that represents great non-property value for the donor creates a threat of irretrievable loss of this thing (Clause 2 of Article 578 of the Civil Code of the Russian Federation).

Donations, charity, sponsorship

A special type of gift is a donation. It involves donating a thing for generally beneficial purposes (clause 1 of Article 582 of the Civil Code of the Russian Federation).

Donations can be made, in particular:

• citizens;
• medical and educational institutions;
• social protection institutions;
• charitable, scientific and educational organizations;
• cultural institutions (foundations, museums, etc.).

The donor can set a condition on the use of property for a specific purpose (clause 3 of Article 582 of the Civil Code of the Russian Federation). In this case, the person accepting the donation must keep separate records of transactions involving the use of such property.

Donation must be distinguished from charity, which is understood as a voluntary, disinterested (free of charge or on preferential terms) transfer of property (including money) to citizens or legal entities, selfless performance of work, provision of services, and provision of other support. This definition is given in Art. 1 Federal Law dated August 11, 1995 No. 135-FZ “On charitable activities and charitable organizations” (hereinafter referred to as Law No. 135-FZ).

As we can see, charity recognizes not only donation, but also the transfer of things on preferential terms, as well as the performance of work and the provision of services.

Separately, it is necessary to say about sponsorship support. By virtue of clause 9 of Art. 3 of the Federal Law of March 13, 2006 No. 38-FZ “On Advertising”, a sponsor is a person who provided funds:

• for organizing and (or) holding a sports, cultural or any other event;
• creating and (or) broadcasting a television or radio program;
• creation and (or) use of another result of creative activity.

Sponsorship differs from charity in that the sponsor receives a consideration: advertising of the sponsor is placed at the event or broadcast. Thus, the sponsorship agreement is compensated.

Features of taxation

VAT. The gratuitous transfer of ownership of goods is considered a sale and on the basis of sub. 1 clause 1 art. 146 of the Tax Code of the Russian Federation is recognized as an object of taxation.

Based on paragraph 1 of Art. 167 of the Tax Code of the Russian Federation, the tax base for VAT is determined either on the day of shipment (transfer) of goods (work, services), property rights, or on the day of payment (the earliest of these dates is taken). Since there is no payment when making a gift, the tax base is calculated on the day the gift is transferred.

To determine whether tax should be assessed, it is necessary to determine for what purposes the money or other property received will be used.

If we're talking about on charity, then the transfer of goods (performance of work, provision of services), property rights free of charge is not subject to taxation on the basis of sub-clause. 12 clause 3 art. 149 of the Tax Code of the Russian Federation. A product, in turn, is any property (including money) intended for sale (clause 3 of Article 38 of the Tax Code of the Russian Federation).

In order to take advantage of the benefit, one condition must be met: the property must be used specifically for charitable purposes, for example, to promote activities in the areas (Article 2 of Law 135-FZ):

• education, science, culture, art, enlightenment, spiritual development personalities;
• prevention and health protection of citizens, as well as propaganda healthy image life, improving the moral and psychological state of citizens;
• physical culture and mass sports;
• security environment and animal protection, etc.

To receive benefits, the institution and the benefactor must draw up the following documents (letter from the Ministry of Finance of Russia dated October 26, 2011 No. 03-07-07/66, Federal Tax Service of Russia for Moscow dated March 5, 2009 No. 16-15/019593.1):

• an agreement for the gratuitous transfer of goods (performance of work, provision of services) within the framework of charitable activities;
• documents confirming that the recipient accepted the registration of goods received free of charge (work performed, services rendered);
• acts or other documents indicating the intended use of goods (work, services) received (performed, provided) within the framework of charitable activities.

For an ordinary (non-charitable) gift, VAT will have to be charged (letter of the Ministry of Finance of Russia dated 02/08/2010 No. 03-02-07/1-52). At the same time, Art. 146 of the Tax Code of the Russian Federation provides for a number of exceptions to this rule. The following are not recognized as objects of taxation:

• transfer of fixed assets, intangible assets and (or) other property to non-profit organizations for the implementation of the main statutory activities not related to entrepreneurial activity(subparagraph 3, paragraph 3, article 39, paragraph 2, article 146 of the Tax Code of the Russian Federation);
• transfer of fixed assets to authorities free of charge state power and management and local governments, as well as state and municipal institutions, state and municipal unitary enterprises(Subclause 5, Clause 2, Article 146 of the Tax Code of the Russian Federation).

Sponsorship assistance is included in the recipient's tax base as funds for the upcoming provision of advertising services to the sponsor on the basis of subclause. 2 p. 1 art. 162 of the Tax Code of the Russian Federation (letter of the Federal Tax Service of Russia dated October 19, 2005 No. MM-6-03/886@). Unlike sponsorship, donations received by an institution are not taken into account in the tax base, since they are accepted free of charge and not as payment for goods, works or services sold (letter of the Federal Tax Service of Russia dated December 10, 2012 No. ED-4-3/ 20919).

Income tax. Obviously, the organization receives economic benefits from receiving property. And it is recognized as income, which is taken into account for tax purposes (Article 41 of the Tax Code of the Russian Federation).

At the same time, in Art. 251 of the Tax Code of the Russian Federation provides a list of income that is not taken into account when determining the tax base. Among them, targeted revenues are mentioned for the maintenance of non-profit organizations and the conduct of their statutory activities. Such receipts, in particular, are donations, income in the form of gratuitously received results of work (services) (Clause 2 of Article 251 of the Tax Code of the Russian Federation).

Of course, to be exempt from taxation, an institution must keep separate records of income (expenses) received (incurred) within the framework of targeted revenues.

The cost of ordinary gifts is included in non-operating income for general principles By market price(Clause 8 of Article 250 of the Tax Code of the Russian Federation). There you will also have to take into account the cost of used intended purpose property, results of work (services) received as part of charitable activities (including in the form of charitable assistance, donations).

This is stated in paragraph 14 of Art. 250 Tax Code of the Russian Federation.

Important nuance

Taxpayers who have received targeted revenues or targeted financing are required to submit a report on the intended use of the property to the tax office at the end of the tax period (incl. Money), works, services received as part of charitable activities, targeted income, targeted financing (sheet 07 of the tax return for corporate income tax, approved by order of the Federal Tax Service of Russia dated March 22, 2012 No. ММВ-7-3/174@).

"Glavbukh", N 14, 2003

Wealthy organizations and citizens sometimes help those who find it difficult to care for themselves (for example, disabled people, orphans, low-income people). Such assistance is called charitable. Moreover, money can be transferred targeted, that is, directly to everyone in need. But most often the funds are sent to public organizations who then donate it to those in need or spend it on organizing various events for support and social adaptation certain categories of citizens.

Of course, both the organization that donates funds and the one that receives charitable assistance must reflect this in its accounting. We will tell you in this article how to do this correctly and whether you need to pay taxes on charitable donations.

What is charity

We can say that a citizen or organization is engaged in charity if they voluntarily and free of charge transfer any property or funds to other citizens or organizations. This is stated in Article 1 of the Federal Law of August 11, 1995 N 135-FZ “On Charitable Activities and Charitable Organizations” (hereinafter referred to as the Law on Charitable Activities). Charitable activities also include work that a benefactor disinterestedly performs for another organization or citizens, as well as services provided to these citizens or organizations.

Does this mean that any donation can be considered charity? No. Not every disinterested transfer of money or property is charity. It recognizes donations for strictly defined purposes listed in Article 2 of the Law on Charitable Activities. For example, for employment of the unemployed, assistance to the poor, treatment of seriously ill people or to support people who have suffered from natural Disasters. The protection of animals and the environment is also considered a charitable activity. Note that clause 2 of Article 2 of the Law on Charitable Activities specifies that financial or any other assistance to commercial organizations, as well as support for political parties, movements, groups and campaigns charitable activities is not.

Example 1.The general meeting of shareholders of Ecliptika OJSC decided to allocate part of the retained earnings of its enterprise in 2003 for the following purposes:

• 250,000 rubles - to help the regional orphanage;
• 120,000 rubles - to the regional branch of the Wildlife Protection Fund;
• 300,000 rubles - to the election fund of the candidate for deputy of the City Duma Shevtsov D.B.

Thus, it turns out that the charitable expenses of Ecliptika OJSC will be only 370,000 rubles. (250,000 + 120,000), since 300,000 rubles transferred to D.B. Shevtsov’s election fund are not a charitable donation.

Example 2. In May 2003, JSC "Team" purchased three buses for the city hockey club. For this, the club management placed the logo of JSC "Team" on the hockey players' sweaters for a year. Thus, the cost of purchasing buses is sponsorship. CJSC "Team" in in this case is a sponsor, and the hockey club is sponsored.

In the same month, JSC "Team" donated 50,000 rubles. All-Russian Society of the Blind. The goals of this society are to help people who have lost their sight. This goal is in the list given in Article 2 of the Law on Charitable Activities. This means that the donation of JSC "Team" to the blind society is considered charitable.

What documents are used to document charitable donations?

If an organization receives cash, then it needs to fill out a cash receipt order, and record its number, date of registration and the amount recorded in the cash book. This is required by the Procedure for conducting cash transactions in Russian Federation, which was approved by the Decision of the Board of Directors of the Central Bank of the Russian Federation on September 22, 1993 N 40. Accordingly, the one who paid this money is issued a receipt for the receipt order as a document confirming the contribution.

If the money is transferred through a bank, then, based on the bank statement and payment order, the accountant of the organization that received charitable contributions, makes an entry in the receipts part of the register, in which he takes into account the amounts received. And the accountant of the charitable organization, in turn, will reflect the expense in his accounting based on a copy of the payment order with a note from the bank or a receipt issued by the bank.

If it is not money that is being transferred, but some property, then it is necessary to draw up a transfer and acceptance certificate. For example When transferring a fixed asset, they draw up an act in form OS-1.

Is it necessary to conclude a contract or agreement? No, the law does not require this. After all, to make a charitable contribution or donation, you do not need the consent of the recipient. The Civil Code of the Russian Federation calls such transactions unilateral and does not oblige them to be formalized in writing. Therefore, the recipient of charitable contributions or donations will only need to indicate information about the donor in the primary document - in the receipt order, acceptance certificate, etc.

But if a benefactor wants to control how and what the money was spent on, as well as how the property transferred to him was used, then an agreement can be drawn up. It must indicate for what purposes the donations are being made, and then, guided by the agreement, check whether the money was spent correctly.

But whether donors monitor how their donations are spent or not, nonprofits must report on how they manage their donations. This “duty” is provided for in Article 19 of the Law on Charitable Activities. The report should show whether the money is spent for the purposes stated in the charter of the charitable organization, or whether it was spent for other purposes. Reports must be prepared annually and then submitted to the tax office along with financial statements.

The report must indicate not only how much was spent and on what during the year, but also list the events that the organization conducts and plans to conduct using charitable funds. Well, if during the year for which the report was compiled, the tax authorities checked the organization and found some violations, then the report should indicate what violations were committed and what was done to correct them.

How are charitable contributions reflected in accounting?

First, let's look at how these contributions should be reflected by the one who donates them. To do this, let us turn to PBU 10/99 “Expenses of the organization”, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n. Paragraph 12 of this PBU states that contributions and payments related to charitable activities should be reflected in accounting as non-operating expenses, that is, on account 91 “Other income and expenses.”

Example 3. The Moscow enterprise Zenon LLC provides financial assistance to the city zoo - transfers 25,000 rubles monthly. The accountant at Zenon LLC reflects these expenses with the following entries:

Debit 91 subaccount "Other expenses" Credit 51

• 25,000 rub. - Charitable assistance to the city zoo was transferred.

Now let's talk about accounting for those organizations that receive charitable donations. There are several features here.

The first feature: such organizations often exist not only on the money that benefactors donate to them, but also on income from business activities. The law allows charitable organizations to engage in business, but with the condition that all income from business will be directed to charitable purposes or to the maintenance of the organization itself.

Charitable organizations must account for income from donations separately from income from business. As we have already said, charitable contributions cannot be spent arbitrarily, but only for certain purposes provided for by the charter of a non-profit organization. Therefore, they must be reflected in accounting as targeted financing.

This is confirmed by the Instructions for using the Chart of Accounts accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n. It requires that:

• targeted revenues were reflected in the credit of account 86 “Targeted financing”;
• income from business activities was accounted for on the credit of the sub-account “Revenue” of account 90 “Sales” and on the credit of the sub-account “Other income” of account 91 “Other income and expenses”.

Example 4. The public organization "Mutual Understanding" received a charitable contribution from an individual in the amount of 5,000 rubles.

In the organization’s accounting records, this transaction was reflected in the following entry:

Debit 50 Credit 86

• 5000 rub. - a charitable contribution has been received.

The second feature is related to the valuation of property received free of charge. If we turn to clause 10.3 of PBU 9/99 “Income of the organization”, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n, then it says that property is taken into account at market value. This rule fully applies to charitable organizations that receive donations in the form of any material assets.

But how can you find out the market value of, say, a fixed asset that was given to you if its residual value in the benefactor’s accounting is zero? Or if the donor is not an enterprise, but a citizen who does not keep any accounting records?

There are two ways. You can refer to the prices that are usually used in transactions for the purchase and sale of the same or similar property. Or you can invite an appraiser who will determine the market value of the property transferred to you.

And one more feature. In accounting, non-profit organizations cannot charge depreciation on their fixed assets. This is prohibited by clause 17 of PBU 6/01 “Accounting for fixed assets”, approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n. Instead of depreciating fixed assets, such organizations must charge depreciation at the end of the year.

But for tax purposes, non-profit organizations can charge depreciation. True, only for those fixed assets that were purchased using income from business activities and are used in the same activities (clause 2, clause 2, article 256 of the Tax Code of the Russian Federation).

Charity and taxes

How to correctly calculate taxes when receiving or transferring charitable assistance? To answer this question, we need to consider in detail the nuances of calculating VAT, personal income tax and profit tax. This is what we will do below.

Value added tax

If you transfer property for charitable purposes, then VAT may not be charged on the cost of this property. The fact is that for such cases, clause 12, clause 3, article 149 of the Tax Code of the Russian Federation provides a benefit: value added tax is not imposed on the cost of goods, as well as work and services that are aimed at charity. True, this does not apply to excisable goods ( alcoholic products, cigarettes, etc.). When donating such goods, VAT must be charged.

Example 5. LLC "Sports World" donated 150 tennis rackets of its own production to the charitable Foundation for the Development of Children's and Youth Sports. Sports World LLC sells such rackets to wholesale buyers for 3,600 rubles, including VAT - 600 rubles. Their cost is 300,000 rubles. However, in this case, the batch of rackets was donated to charity. Therefore, rackets are not subject to value added tax.

In the accompanying documents, the accountant of Sportivny Mir LLC will indicate the total cost - 450,000 rubles. (RUB 3,000 x 150 pcs.) excluding VAT. And in accounting he will make the following entry:

Debit 91 subaccount "Other expenses" Credit 43

• 300,000 rub. - rackets were donated to charity.

Personal income tax

Whether to withhold this tax or not will have to be decided only if the charitable assistance receives individual, not an organization. Article 217 of the Tax Code of the Russian Federation lists all income that is not subject to personal income tax. Paragraph 8 of this article says the following. This tax is not imposed only on charitable assistance that citizens in need receive from charitable organizations. But we are talking only about those organizations that are determined by the Government of the Russian Federation. So far, this norm applies only to one organization - the All-Russian Public Charitable Fund for the Support of Military Personnel (Employees) and Civilian Personnel of the Armed Forces of the Russian Federation, other troops and military formations, special services and law enforcement agencies of the Russian Federation "National Military Fund". This is stated in the Decree of the Government of the Russian Federation of December 25, 2002 N 926.

In addition, according to paragraph 12 of Article 217 of the Tax Code of the Russian Federation, scholarships established by charitable foundations, as well as financial support for orphans and children from families where the income for each family member does not exceed the subsistence level are exempt from taxation.

Income tax

With the entry into force of Chapter 25 “Organizational Profit Tax” of the Tax Code of the Russian Federation, previous benefits for commercial organizations participating in charitable activities were abolished. These benefits allowed businesses to partially reduce their taxable profits by the amounts that were donated to charity. Now, charitable expenses do not reduce taxable income.

Do organizations receiving charitable assistance need to pay income tax on it? Clause 2 of Article 251 of the Tax Code of the Russian Federation states that public organizations do not take into account such targeted revenues as:

• entrance and membership fees;
• donations;
• property transferred to the organization under the wills of individuals;
• amounts allocated from the budget to finance statutory activities.

Please note that this list is exhaustive. Therefore, those types of financial or material assistance that are not indicated in it must be included in the tax base.

Example 6. Public charitable scientific and educational organization "Center positive thinking"exists exclusively through entrance and membership fees, as well as voluntary charitable donations. Since the organization spends all these funds on its statutory activities, which is to disseminate the ideas of a healthy lifestyle, contributions and donations are not subject to income tax.

Please note: targeted revenues are recognized as such for the purposes tax accounting only on condition that non-profit organization The company that receives them keeps separate records of income and expenses. That is, it separates in accounting income and expenses for business activities (if such activities are carried out) from income and expenses for its main, charitable activities. This is stated in Methodical recommendations on the application of Chapter 25 of the Tax Code of the Russian Federation, approved by Order of the Ministry of Taxes of Russia of February 26, 2002 N BG-3-02/98.

What happens if you don’t keep separate records? In this case, the tax authorities will consider all the funds that the non-profit organization receives as non-operating income and will require them to be included in the tax base.

In addition, keep in mind: if charitable contributions and donations are spent by an organization for other purposes (that is, for purposes that are not related to charitable activities or that contradict the intentions of the benefactor), then these contributions increase taxable income. Organizations receiving targeted revenues listed in clause 2 of Article 251 of the Tax Code of the Russian Federation must fill out a Report on the targeted use of property (including funds), works, services received as part of charitable activities, targeted revenues, targeted financing. This is what it says in the Instructions for filling out the Organizational Income Tax Declaration, approved by Order of the Ministry of Taxes and Taxes of Russia dated December 29, 2001 N BG-3-02/585. This report is sheet 14 of the Income Tax Declaration. By analyzing the information reflected in the report, you can find out whether the organization managed the contributions and donations received correctly or not.

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 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 in various fields (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 during charitable activities is quite wider. 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 for its 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 law does not provide for automatic cancellation of the contract 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 money donation agreement 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. The transfer of goods (performance of work, provision of services), transfer of 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 on the territory of the Russian Federation, the transfer of goods (performance of work, provision of services) free of charge as part 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 business activities. 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, the gratuitous transfer of property rights within the framework of charitable activities is exempt from taxation. 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.

Administration medical organization forces doctors to collect donations from patients and thereby fulfill the plan for providing paid medical services. If they refuse, employees are threatened with sanctions.

The hospital is not prohibited from accepting donations. However, it is impossible to force a doctor to fulfill the norm “for charity”. Remember that compliance with the law is monitored by the prosecutor's office, where a health worker has the right to complain.

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The main thing in the article:

“Dear comrade Ivanov! If you have the opportunity and desire to provide financial assistance to our hospital, please transfer 1000 rubles to the current account of the medical organization. Provide me with the transfer receipt."

This is exactly how the administration of one of the hospitals “recommends” doctors to collect funds from patients.

Each department must fulfill the plan - provide paid services. If there is not enough money, donations are used.

Charity for the needs of a medical organization is optimal for the administration, because the patient gives money voluntarily. However, he does not sign an agreement for a specific service and cannot demand a refund.

Each department employee is obliged to contribute to the collection of money, otherwise he will not be allowed to work in peace. The management threatens inspections in the wards, bad attitude, harsh measures for minor offenses.

Budgetary healthcare institutions draw up a plan for financial and economic activities. This follows from paragraph. 6 clause 3.3 art. 32 of Law No. 7-FZ. and related expenses.

This is stated in the order of the Ministry of Finance of Russia dated July 28, 2010 No. 81n “On the requirements for the plan of financial and economic activities of a state (municipal) institution.” The plan is approved by the head of the organization (clause 22 of the order).

A health care institution is not required to meet delivery targets. paid services. There is also no legal liability for failure to fulfill this obligation. However, the lack of income from the provision of paid services also limits the expenses of a medical organization from this source of funds.

Low tariffs in the compulsory medical insurance system do not cover the costs incurred for the provision of medical care. At the same time, there are also problems of ineffective spending in healthcare: unreasonably inflated prices in government procurement, ineffective use of human resources. To overcome the shortage of funds, the organization is forced to engage in entrepreneurial activities.

If paid medical services do not cover the shortage of funds, the administration of the medical organization is looking for other ways to earn money. So, some managers force employees

What is charity and donation

On a note: Among the reasons for the growth in the volume of paid medicine, health workers put staffing shortages in state and municipal medical organizations in first place (46.8% of respondents), and low compulsory medical insurance tariffs in second place (25.4%). These are the results of a survey by the Health Foundation.

From the point of view of the law, charity is the transfer of property, including money, free of charge or on preferential terms to citizens or legal entities, disinterested performance of work, provision of services, etc. This is stated in Art. 1 of the Federal Law of August 11, 1995 No. 135-FZ “On Charitable Activities and Charitable Organizations” (Law No. 135-FZ).

The purpose of charity may be to promote activities in the field of prevention and protection of public health, as well as promotion of a healthy lifestyle (Part 1, Article 2 of Law No. 135-FZ).

A donation is the gift of an item for generally beneficial purposes, including medical organizations (Part 1 of Article 582 of the Civil Code of the Russian Federation). Under a gift agreement, one party gratuitously transfers or undertakes to transfer to the other party a thing (including money - Article 128 of the Civil Code of the Russian Federation) into ownership. This wording is contained in Part 1 of Art. 572 of the Civil Code of the Russian Federation.

Thus, voluntary monetary donations from citizens are a legitimate source of income for a medical organization.

If a medical organization has received a charitable donation, it acts as a beneficiary (Article 5 of Law No. 135-FZ).

Are doctors prohibited from accepting donations?

Citizens and legal entities engage in charity voluntarily and are free to choose its goals (Clause 1, Article 4, Law No. 135-FZ). A donation is a civil legal relationship; employees of a medical organization act as its representatives (Part 1 of Article 182 of the Civil Code of the Russian Federation) at their own request. Thus, collecting donations in the hospital is not prohibited.

How to make a donation

Donations must be properly processed. The organization's charter must contain a clause on the possibility of receiving donations from individuals and legal entities.

Medical organization (Clause 1. Part 1 of Article 161 of the Civil Code of the Russian Federation). The donor can indicate the purpose of his donation, but this is his right, not his obligation. The beneficiary must keep records of funds (Part 3 of Article 582 of the Civil Code of the Russian Federation).

Is it possible to force a doctor to collect donations?

A medical organization cannot force medical workers to collect donations, much less oblige them to fulfill the collection plan. The employer-employee relationship is regulated by the rules labor law. An employee doctor performs work in accordance with his position and receives a salary (Article 15 of the Labor Code of the Russian Federation).

A specialist doctor cannot be charged with collecting donations within the framework of his professional medical activities. Medical activities includes the provision of medical care, examinations, examinations and examinations, preventive measures (Article 2 of Law No. 323-FZ).

A specialist, first of all, is obliged to diagnose and treat diseases and assess the patient’s condition. In addition, he must maintain medical documentation, plan and analyze the results of his work, observe medical ethics, tell patients about disease prevention, etc.

The full list of responsibilities is given in the order of the Ministry of Health and Social Development of Russia dated July 23, 2010 No. 541n “On approval of the Unified qualification directory positions of managers, specialists and employees." This is what the section “ Qualification characteristics positions of workers in the healthcare sector.” Collecting donations is not among the duties of medical specialists.

Example. When does a doctor benefit from a donation?

Patients can donate money to the hospital for specific purposes. This follows from Part 3 of Art. 582 of the Civil Code of the Russian Federation. Let's look at two examples.

• “I’m donating 3,000 rubles to purchase a new sink in the ward of the urology department.” In this case, the doctor, on whose initiative the money was transferred to the cash desk of the medical organization, cannot count on part of it.
• “I’m donating 2,000 rubles for bonuses for the employees of the urology department on the Celebration Day medical worker" On Medical Worker Day, the urologist who attracted the donation will receive a reward, like his other colleagues from the urology department.

The point is not that in the second case the doctor initiated the donation, but that the patient determined the purpose for which the money would be used.

When a doctor gets paid for soliciting donations

In what case does a doctor have an obligation to collect donations and the right to receive payment for this? This happens if he combines professions or positions (Article 60.2 of the Labor Code of the Russian Federation).

For example, a particular doctor can tell their relatives about the opportunity to donate money to a medical organization. For part-time work he receives an additional payment. Its size depends on the content and volume of work and is determined by agreement of the parties employment contract(Article 151 of the Labor Code of the Russian Federation).

1. Be guided legal norms, which indicate that citizens and legal entities can only engage in charitable activities voluntarily and are free to choose their goals.
2. Remember that the prosecutor's office monitors compliance with the law. If a doctor or patient comes there with complaints about forced collection of donations, then violations during the inspection will most likely be found