Chapter 14 Opening and maintenance of bank accounts of individuals and legal entities Regulatory framework1. Civil Code of the Russian Federation, part one dated November 30, 1994 No. 51-FZ, part two dated January 26, 1996 No. 14-FZ.2. Federal Law of August 7, 2001 No. 115-FZ “On

1. Banking operation "opening and maintaining bank accounts of individuals and legal entities": general characteristics Banking operation "opening and maintaining bank accounts of individuals and legal entities" largely coincides with a bank account transaction (Chapter 44 of the Civil Code of the Russian Federation). IN

Chapter 15 Making settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts Regulatory framework1. Civil Code of the Russian Federation: part one dated November 30, 1994 No. 51-FZ, part two dated January 26, 1996

1. Cash collection, bills of exchange, payment and settlement documents and cash services for individuals and legal entities

3. Taking deposits and placing precious metals The banking operation "taking deposits and placing precious metals" is not provided for by modern civil law regulation, although, based on the general principles of civil law, it is not prohibited by them.

5. Making money transfers on behalf of individuals without opening bank accounts (except for postal orders) Making money transfers on behalf of individuals without opening bank accounts (except for postal

88. The procedure for calculating the tax on property of individuals. General provisions The tax on buildings, premises and structures is calculated on the basis of data on their inventory value as of January 1 of each year. For buildings, premises and structures located

Chapter 3. Accounting of financial assets (cash). The procedure for accounting for cash and cash transactions (Level 1) Regulatory framework Organization of cash transactions Cash settlements are carried out through the cash desk and

3.3. Deductions in favor of legal entities and individuals under executive documents This type of deduction from wages is regulated, first of all, by the Federal Law of October 2, 2007 No. 229-ФЗ “On Enforcement Proceedings”. Grounds for deductions on

Our leasing company needs to raise funds from legal entities. and physical persons at interest in order to make transactions on leasing. Banks offer funds at very high interest rates, which make leasing transactions unprofitable. However, we are not a microfinance or credit institution. Questions. 1). Can we raise funds from individuals? and legal persons with the payment of interest to conduct statutory activities? 2). If so, what is the legal way we can announce this to an indefinite circle of people (advertising)? Yandex-Direct did not take our ad because we do not have a license for financial transactions.

Answer

Yes, you can.

In each case, you must conclude a loan agreement. There are no restrictions on the conclusion of an agreement for you and your potential counterparties (if the loan is issued from your own funds).

You can place an announcement of your intention to conclude a loan agreement.

The rationale for this position is given below in the materials of "Systems Lawyer" .

“If an organization does not have enough money and there are difficulties in obtaining a loan or, then you can borrow money in another way. You can get borrowed funds from any legal or natural person, including an individual entrepreneur, by concluding. Unlike a loan agreement under a loan agreement .*

The organization received funds under a loan agreement. Can the court decide that the contract is invalid due to the fact that the loan was provided by a person who did not have the right to do so

In principle, this is possible, although unlikely. For the borrower, such a development of events can be both beneficial (he gets a chance to get rid of too expensive financing) and disadvantageous (immediately after the entry into force of the court decision, the lender will be able to demand the return of the entire loan amount). But in practice, the risk for the borrower is negligible.

Any person can issue a loan - an organization, an entrepreneur or an individual without the status of an entrepreneur. Loans do not require a license. There is only one limitation.

The lender has the right to issue a loan only from its own funds. If he issues loans from the funds that he attracts from other organizations or individuals, this will be considered a violation of banking legislation (for such operations, you need to obtain a license and only banks and non-bank credit organizations can carry out them). In practice, there are examples when for such lenders everything ended in liquidation (decisions of the Federal Antimonopoly Service of the Urals District dated August 4, 2003 No. F09-2036 / 03-GK in case No. A76-15655 / 02 and dated August 4, 2004 No. F09-2420 /04-GK in case No. А76-15655/02). In this case, the court itself may recognize the loan agreement as invalid and apply the consequences of the invalidity of the void transaction.

Previously, one could also come across the following argument: lending activities should not be systematic. This argument was based on the position of the Supreme Arbitration Court of the Russian Federation, which was expressed back in 1994. However, the courts currently reject references to this clarification.”

Attracting funds from legal entities and individuals in deposits: general provisions

An important feature of raising funds as a banking operation is that the circle of persons from whom funds are raised is not defined. This makes it possible to distinguish this operation from the actions of various credit cooperatives, which attract deposits from their participants with the subsequent issuance of accumulated funds as loans.

Raising funds can occur due to civil law loan transactions, including such types of borrowing as a loan, when issuing a bill, when issuing bonds and other securities of a similar economic nature (various notes known to foreign law, etc.). d.). In terms of its economic consequences, this activity has much in common with the activity of attracting funds for deposits. Moreover, the funds raised as a loan or loan can subsequently be placed in the form of loans (this activity, for example, is carried out by various funds for financing small businesses).

If transactions are carried out in accordance with the provisions of the Civil Code of the Russian Federation, then actual actions, in particular the procedure for calculating interest, are determined by the Bank of Russia regulations (for example, Bank of Russia Regulation No. 39-P dated June 26, 1998 “On the procedure for calculating interest on transactions related to with the attraction and placement of funds by banks”).

Bank deposit agreement

General characteristics of the bank deposit agreement

In accordance with Art. 834 of the Civil Code of the Russian Federation, under a bank deposit (deposit) agreement, one party (bank), which has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner provided for contract.

The bank deposit agreement is unilateral, which means that one party to the agreement has rights that correspond to the obligations of the other party. In the bank deposit agreement, the depositor has the right to demand the return of the deposited amount and the payment of interest.

The agreement in question is real, that is, it is considered concluded and, accordingly, gives rise to the rights and obligations of the parties only from the moment the depositor makes a deposit in the bank.

A bank deposit agreement in which a citizen is a depositor is recognized as a public agreement. According to Art. 426 of the Civil Code of the Russian Federation, a public contract is understood as a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it. A commercial organization is not entitled to give preference to one person over another in relation to the conclusion of a public contract, except in cases provided for by law and other legal acts.

The conditions of the public agreement are established the same for all depositors - natural persons. In accordance with the law, a bank cannot refuse an individual to conclude a bank deposit agreement if he has the opportunity to conclude such an agreement (for example, the bank has a license, etc.).

The terms of a public contract that do not meet the above requirements are void.

It should be emphasized that a bank deposit agreement is not public if the depositor is a legal entity.

The bank deposit agreement is paid.

In accordance with Art. 838 the bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement. If there is no condition in the agreement on the amount of interest paid, the bank is obliged to pay interest in the amount determined in accordance with paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, i.e., based on the bank interest rate (refinancing rate) existing at the place of residence of the depositor (if the depositor is a legal entity - at its location) on the day the bank pays the deposit amount.

Subjects of the bank deposit agreement

Banks that have been granted such a right in accordance with a license issued by the Bank of Russia in the prescribed manner (clause 1, article 835 of the Civil Code of the Russian Federation) have the right to raise funds in deposits.

Taking into account paragraph 3 of Art. 834 of the Civil Code of the Russian Federation and paragraph 4 of Art. 845 of the Civil Code of the Russian Federation, the rules on a bank deposit agreement are also applied to other credit institutions in accordance with the issued permit (license). At present, deposit and credit non-bank credit organizations (NCOs) have the right to attract funds from legal entities to deposits. It should be emphasized that deposit and credit NCOs do not have the right to attract funds from individuals as deposits.

If a deposit is accepted from a citizen by a person who does not have the right to do so, or in violation of the procedure established by law or banking rules adopted in accordance with it, the depositor may demand the immediate return of the deposit amount, as well as the payment of interest on it, provided for in Art. 395 of the Civil Code of the Russian Federation, and compensation in excess of the amount of interest on all losses caused to him.

If such a person accepts, under the terms of a bank deposit agreement, the funds of a legal entity, then this agreement is, in accordance with Art. 168 of the Civil Code of the Russian Federation invalid.

The above consequences also apply in the following cases:

• attracting funds from citizens and legal entities by selling them shares and other securities, the issue of which is recognized as illegal;
• attraction of funds of citizens in deposits under bills of exchange or other securities, excluding the receipt by their deposit holders on first demand and the exercise by the depositor of other rights provided for by law.

A depositor under a bank deposit agreement can be any subject of civil law (both an individual and a legal entity) that has the appropriate legal capacity (i.e., the ability to have civil rights and incur obligations) and legal capacity (i.e., the ability to acquire and exercise civil rights, create for oneself civic obligations and fulfill them). According to sub. 3 p. 2 art. 26 of the Civil Code of the Russian Federation, minors from the age of 14 have the right to independently, without the consent of their parents, adoptive parents or trustees, "in accordance with the law, make contributions to credit institutions and dispose of them." If, by a court decision, a citizen can be recognized as incapable (due to a mental disorder), guardianship is established over him and transactions are made by his guardian (including entering into a bank deposit agreement). A citizen may also be limited by the court in legal capacity (due to the abuse of alcohol or drugs), then guardianship is established over him, and he can make transactions only with the consent of the trustee (Articles 29, 30 of the Civil Code of the Russian Federation).

Article 841 of the Civil Code of the Russian Federation establishes the right of third parties to deposit funds into the depositor's account. Unless otherwise provided by the bank deposit agreement, the funds received by the bank in the name of the depositor from third parties are credited to the deposit account, indicating the necessary data on his deposit account. It is assumed that the depositor has agreed to receive funds from such persons by providing them with the necessary data on the deposit account.

Types of deposits

The Civil Code of the Russian Federation establishes two main types of deposits (Article 837), depending on the timing of their return: demand deposit (a bank deposit agreement is concluded on the terms of issuing a deposit on demand) or a term deposit (an agreement is concluded on the terms of the return of the deposit after a certain agreement term). However, the agreement may provide for making deposits on other terms of their return that do not contradict the law.

Under a bank deposit agreement, regardless of its type, the bank is obliged to issue the deposit amount or part of it at the first request of the depositor, with the exception of deposits made by legal entities on other return conditions provided for in the agreement. The condition of the agreement on the refusal of a citizen from the right to receive a deposit on first demand is void.

In cases where a term or other deposit, other than a demand deposit, is returned to the depositor at his request before the expiration of the term or before the occurrence of other circumstances specified in the bank deposit agreement, interest on the deposit is paid in the amount corresponding to the amount of interest paid by the bank on demand deposits, unless the agreement provides for a different amount of interest.

Depending on the subject composition of the agreement, bank deposits are divided into deposits of individuals and deposits of legal entities.

Deposits can also be classified as deposits in favor of the depositor and deposits in favor of third parties. Until a third party expresses its intention to exercise these rights, a person who has entered into a bank deposit agreement may exercise these rights in relation to the funds deposited by him to the deposit account.

A bank deposit agreement in favor of a citizen who has died by the time the agreement is concluded, or a legal entity that does not exist at that time, is void.

Bank deposit agreement form

The bank deposit agreement must be concluded in writing (Article 836 of the Civil Code of the Russian Federation). Failure to comply with the written form of the bank deposit agreement shall entail the invalidity of this agreement. Such an agreement is void.

The written form of the bank deposit agreement is considered to be complied with if the deposit is certified:

• savings book;
• savings or deposit certificate;
• another document issued by the bank to the depositor that meets the requirements provided for such documents by the law, the banking rules established in accordance with it and the customs of business turnover applied in banking practice.

Unless otherwise provided by agreement of the parties, the conclusion of a bank deposit agreement with a citizen and the deposit of funds to his deposit account are certified by a savings book (Article 843 of the Civil Code of the Russian Federation). Savings book can be nominal or bearer. A bearer savings book is a security.

In the savings book, the following must be indicated and certified by the bank: the name and location of the bank (the location is determined by the place of state registration), and if the deposit is made to a branch, also its corresponding branch; deposit account number, as well as all amounts of funds credited to the account; all amounts of funds debited from the account and the balance of funds on the account at the time of presentation of the savings book to the bank.

Unless a different state of the deposit is proved, the data on the deposit indicated in the savings book are the basis for settlements on the deposit between the bank and the depositor. The issuance of a deposit, the payment of interest on it and the execution of the depositor's orders to transfer funds from the deposit account to other persons are carried out by the bank upon presentation of the savings book. If a registered savings book is lost or rendered unusable for presenting, the bank, at the request of the depositor, issues a new savings book to him.

Restoration of rights on a lost bearer savings book is carried out in the manner prescribed for bearer securities, i.e., in accordance with Art. 148 of the Civil Code of the Russian Federation, the depositor must apply to the court.

A savings (deposit) certificate is a security that certifies the amount of the deposit made to the bank and the right of the depositor (certificate holder) to receive the deposit amount and the interest stipulated in the certificate at the bank that issued the certificate, or at any branch of this bank ( article 844 of the Civil Code of the Russian Federation). Savings (deposit certificates) are not settlement and payment documents.

Savings (deposit) certificates are divided into bearer and nominal. Certificates are issued for a fixed period. In case of early presentation of a savings (deposit) certificate for payment, the bank shall pay the amount of the deposit and interest paid on demand deposits, unless the terms of the certificate stipulate a different amount of interest.

The written form of a bank deposit agreement also refers to bank cards, the issue of which is regulated by the Regulation of the Bank of Russia dated December 24, 2004 No. 266-P “On the issue of bank cards and on operations performed using payment cards”.

Rights and obligations of the parties

Since the bank deposit agreement is unilateral, the depositor has the rights under this agreement, and the bank has obligations. The main obligations of the bank include the return of the deposit and the payment of interest on it.

The return by the bank of citizens' deposits is currently guaranteed by compulsory deposit insurance, and in cases provided for by law by other means. Thus, the Law on Banks (Article 39) establishes a provision according to which banks can create voluntary deposit insurance funds.

Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit. If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in the event of loss of security or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it, calculated based on the current at the place of residence of the depositor (if the depositor is a legal entity - at its location) the bank interest rate (refinancing rate) on the day the bank pays the deposit amount (Article 840 of the Civil Code of the Russian Federation).

The bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement.

Unless otherwise provided by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits (clause 2, article 838 of the Civil Code of the Russian Federation). However, a reduction by the bank of the agreed amount of interest is possible only for demand deposits and provided that the prohibition on such actions of the bank is not established in the contract. The new interest rate is applied to deposits made before the notice to depositors of the reduction in interest, after a month from the date of the corresponding notice, unless otherwise provided by the agreement. Reducing the amount of interest on a term deposit based on the bank interest rate (refinancing rate) existing at the place of residence of the depositor (if the depositor is a legal entity - at its location) on the day the bank pays the deposit amount is possible only if it is expressly provided for by law. An exception to this rule is made for legal entities, provided that the possibility of reducing interest is provided for in the text of the agreement.

Interest on the amount of a bank deposit is accrued from the day following the day of its receipt by the bank, until the day it is returned to the depositor, inclusive, and if it is debited from the depositor's account for other reasons, until the day of debiting, inclusive.

Interest on the amount of the bank deposit is paid to the depositor at his request after the expiration of each quarter separately from the amount of the deposit, and the interest unclaimed during this period increases the amount of the deposit on which interest is accrued. When the deposit is returned, all interest accrued up to that moment is paid.

Individuals and legal entities, within the framework of legislative norms, can enter into business relations, sign contracts, and conclude transactions. So, these subjects assume certain obligations. Along with this, they also receive certain opportunities. Let's take a closer look at what individuals and legal entities are.

General information

Individuals and legal entities have a number of significant differences. First of all, they are manifested in the features of activities, the use of their property and capital, the acquisition of duties. The norms establish certain requirements for these categories, explain the criteria by which the subject belongs to any of them.

Individual

The Russian Federation is a multinational state in which many people live and work. They differ in age, gender, material condition, nationality, place of residence. However, they are all recognized as natural persons. This term is used to identify people. As a rule, this concept is identified with the word "citizen". In the Civil Code, these terms are treated as equivalent. In accordance with the norms of international law, as well as other legal acts in force on the territory of the Russian Federation, not only a person born directly in Russia can act as an individual. They can also be a foreigner. At the same time, not all people living in the Russian Federation are its citizens. This is the actual difference between these concepts.

Responsibilities and Opportunities

The rights of individuals are fixed by regulatory documents. According to their provisions, this category can own property, get a job, get an education, get married, and so on. Legal acts provide for a certain freedom of people in establishing their duties and rights in accordance with agreements. They can determine the terms of the contract themselves, which do not contradict the normative documents. Opportunities and responsibilities that individuals and legal entities have are closely interconnected. The latter is quite specific and manifests itself directly within the framework of emerging relationships. The relationship is that the possibility of one subject is the duty of another. In some cases, however, the participants in the relationship seek to obtain as many rights as possible, getting rid of certain obligations. This negatively affects the nature of the interaction of subjects. In such cases, business relationships begin to deform. Some subjects get the opportunity to impose their interests on others, while infringing on their freedoms. In today's business system, this kind of imbalance is highly undesirable and in most cases impossible.

Legal capacity of individuals

It is understood as the ability of subjects to fulfill their duties and realize the opportunities established by the norms. Individuals have the right:

1. Own property by right of ownership.
2. Bequeath and inherit wealth.
3. Carry out business and other activities permitted by the regulations.
4. Form legal entities and take part in them.
5. Carry out transactions and actions that do not contradict the norms.
6. Choose a place to live.
7. Own the copyright to created works of art, literature, science and other results of intellectual activity.

legal capacity

Any natural person, regardless of gender, nationality, age, place of residence, has the right to become a subject of entrepreneurial activity at his own will. However, this possibility is realized if a person additionally has legal capacity. It is understood as the ability of people to receive and exercise civil rights enshrined in the norms, create legal obligations for themselves and implement them in relation to other subjects. Legal capacity appears with the onset of adulthood. An exception is cases of marriage before the age of 18. Citizens and legal entities can interact only if the former acquire legal capacity. It can be limited by the courts. A person can be declared incompetent in general.

Organizations

They are defined in current regulations. A legal entity is an organization registered with authorized bodies that owns, manages or manages separate property. It can enter into contracts and make transactions on its own behalf. Organizations may participate in court hearings as plaintiffs or defendants. They exercise property and non-property rights. Organizations also have responsibilities fixed by regulations.

Comparative characteristics

The main difference lies in the definition itself. A legal entity can be considered as such only after passing the state registration procedure. In Russia, the existence of organizations engaged in entrepreneurial activities without going through such a procedure is not allowed. Individuals and legal entities differ, therefore, in the fact that they acquire the ability to exercise their capabilities and fulfill their responsibilities. The first receive it from birth. Legal entities must register to exercise their capabilities.

Procedure specifics

The formation of a legal entity is carried out in accordance with the procedure established by the norms. Registration is carried out by authorized bodies. The same structures carry out the liquidation of organizations. The regulations provide for various forms of legal entities. An organization acquires its status as part of the registration procedure for one person, group or several companies. As a result, the official name of the company appears, by which it is identified. The name belongs only to a particular organization and cannot be used by others. Today, such forms of legal entities as OJSC, LLC, partnership, cooperative and others are common.

Company structure

Every company must meet certain requirements. Among them:

1. organizational unity.
2. Process control.
3. The ordering of connections.

All key points of activity are included in the constituent documents of a legal entity. These papers are provided to authorized structures for registration. The formation of a legal entity is carried out on the basis of the pooling of capital, personal efforts of participants, their property.

The adoption of certain decisions is made at the general meetings of the founders. At the very first of them, a protocol is drawn up on the direct creation of the organization, the conditions for participation, and the direction of entrepreneurial activity is established. In addition, each company has its own charter, memorandum of association. The listed documents formulate the responsibility of the legal entity. In case of violation of certain points specified in the constituent documents, certain sanctions are provided. Members are liable with their property.

The organization may consist of one founder. He acts as the sole owner and head of the enterprise. The liability of a legal entity is also established by the current legislative norms. Issues relating to violations in the economic sphere are considered in arbitration courts.

Isolation of property

This difference is considered the main one. The property may be in operational management, ownership or economic management. Regardless of this, it is isolated. Citizens who carry out entrepreneurial activities also have property. However, they use it for more than just doing business. The property of natural persons also serves to satisfy their own needs, the realization of inalienable freedoms and rights.

Independence

It is provided for by the Federal Law on legal entities. Organizations that have separate property are responsible for their obligations. They enter independently into business relations with other market entities on their own behalf. Without involving the founders in the processes, legal entities can act in court as defendants or plaintiffs. Thus, there is an independence of will that does not coincide with the will of the founders. The organization exists independently of the members.

Individual entrepreneur

Individuals receive the right to engage in commercial activities, like legal entities, after registration. This procedure is mandatory. Without it, entrepreneurial activity is prohibited. The Federal Law on Legal Entities establishes certain requirements for organizations, by fulfilling which participants can combine their property and capital and form a company. For individual entrepreneurs, the conditions for registration are provided for in the Civil Code.

Exceptions

At the same time, the legislation establishes some cases in which commercial activities are allowed by minors and entities that have not passed state registration as an individual entrepreneur (PBYuL). For example, the Civil Code establishes the right of citizens aged 14-18 to make transactions on their own:

1. Household character.
2. Aimed at gratuitous acquisition of benefits that do not require state registration or notarization.
3. By disposal of funds that are provided to a minor for any specific purpose or aimlessly.

In addition to the above transactions, minors aged 14-18 are allowed to become depositors in credit institutions, freely dispose of these funds and other income. Sixteen-year-old subjects may join cooperatives. Responsibility for transactions made by minors under 14 years of age is borne by parents (guardians, adoptive parents).

Specificity of PBUL

Unlike most legal entities, individual entrepreneurs in many cases are deprived of the opportunity to turn the results of their own activities into profit and reinvest funds in the development of their business. This, according to a number of authors, is the main specificity of PBUL. This, in particular, is about the fact that an ordinary person, without burdening himself with the need to register as a legal entity, can carry out entrepreneurial activities between times. For example, he can give someone a lift in his car, give a lecture, or provide another service. Legal entities undoubtedly have more options. The activities of organizations, as a rule, are aimed not only at extracting real income, but also at expanding their business.

Conclusion

In market relations, individuals and legal entities play key roles. These entities constantly interact with each other. To enter the market, to carry out their activities, the legislation establishes certain requirements. They relate mainly to the registration process. Commercial activity involves generating income. In accordance with tax legislation, profits are subject to taxation. Calculation of deductions is made on the basis of official reporting data. In the absence of registration, there is no need to draw up such documents and, accordingly, pay taxes. But this is a violation of the law and implies a corresponding responsibility.

As you know, domestic legislation allows donations on behalf of organizations in favor of ordinary citizens. The specified legal relationship is regulated by the general rules of Chapter 32 of the Civil Code, but at the same time it has a number of features in the design, gratuitous transfer of certain types of gifts, as well as additional restrictions and grounds for canceling the transaction. In addition, taxation features require separate consideration - the donor also has an obligation to pay taxes.

Making a donation between a legal entity and an individual

A donation between an organization and an individual, as a general rule, is drawn up donation agreement(Article 572 of the Civil Code). According to it, the organization transfers free of charge or undertakes to transfer any thing, property right or release the donee from property obligations. Please note that this agreement cannot contain any property obligation or a counter presentation of the donee, otherwise it will be void.

If the value of the gift transferred to the legal entity person exceeds 3 thousand rubles, the contract must be drawn up in writing. Violation of this rule entails the nullity of the concluded transaction (paragraph 2 of article 574 of the Civil Code).

Note that the requirement for the written form of any of the contracts concluded by legal entities. person, is contained in paragraph 1 of Art. 161 CC.

In addition to the form, the contract must meet the requirements for content. So, according to Art. 432 of the Civil Code, the contract must contain condition about the subject. According to paragraph 2 of Art. 572 of the Civil Code, a donation agreement that does not indicate a specific gift is void. So, in the deed of gift, all the significant characteristics of the gift are described in detail, distinguishing it from among similar items.

In addition to the subject, it is subject to indication in the contract order of transmission gifted citizen. In particular, the conditions for the transfer, the method and terms of delivery, additional documents to be drawn up, procedures to be carried out, third parties involved, etc., must be determined.

If the gift being transferred has flaws that can cause any harm to the donee, then the representative of the organization of the donor is obliged to inform him about them(Article 580 of the Civil Code). In addition, these shortcomings should also be reflected in the contract.

Since the donation is not only a transaction, but also a financial transaction that requires accounting, in addition to the donation agreement, the legal entity needs to prepare other documents. In particular, the donation is also made by order of the head of the organization and statement on the issuance of a gift, which acts as a deed of transfer.

Please note that on behalf of the organization, a gift transaction is always concluded by its authorized representative, who acts under a power of attorney issued by the head of the organization. According to paragraph 5 of Art. 576 of the Civil Code, such a power of attorney must contain an indication of donee and object of donation.

Donation of a car by a legal entity to an individual

When donating in favor of physical persons, it should be remembered that paragraphs 2 and 3 of Art. 575 of the Civil Code, the legislator determined list of persons in whose favor donation is prohibited. Thus, this list includes employees of educational, medical and social institutions, as well as state and municipal employees.

Additionally

As you know, a gratuitous transfer is recognized by tax legislation as a sale, and therefore, the donor has to charge VAT. However, this rule only applies to goods - donating money allows you to avoid the obligation to charge the specified tax.

When making such a donation, one should take into account the legislative prohibitions established by Art. 575 CC. Yes, it is forbidden to give money employees of social, educational and medical spheres, municipal and state employees- such a donation will be considered corruption.

The legislator does not limit the parties in the maximum allowable amount of donated physical assets. face funds. In addition, the contract cannot provide for the designated purpose of the donated funds. If there is still a need to determine the intended purpose, it is more advisable to conclude a donation agreement (Article 582 of the Civil Code).

Taxes when donating a legal entity to an individual

As you know, when donating from an organization in favor of citizens, the obligation to pay taxes arises on both sides of the donation. So, since the donation of property is recognized as its sale (Article 146 of the Tax Code), the first place where the value of the property donated to a citizen is to be taken into account is value added tax(VAT). An exception to this rule are cases of donating money - they are not recognized as goods, and therefore, their sale is impossible. Note that organizations using the simplified tax system are not VAT payers (Article 346.11 of the Tax Code).

Attention

The value of the donated property and the expenses incurred by the organization for its transfer to the donee are not taken into account when calculating corporate income tax (clause 16 of article 270 of the Tax Code).

Interestingly, when using the simplified tax system, donation costs are also not taken into account when calculating the amount of income received.

As for the donee individual, when receiving a gift from the organization, the tax obligation to pay personal income tax arises for him only if the total value of the gifts received from the specified organization during the year, exceeds 4 thousand rubles(Clause 28, Article 217 of the Tax Code). At the same time, income tax is subject to calculation not from the entire value of gifts, but only from the part exceeding 4 thousand rubles.

The tax rate levied on the donee is 13% of the market value of the property(Article 40 of the Tax Code). The objectivity of the tax base must be documented or confirmed by an expert assessment.

Note that if the organization is a tax agent of the donee physical. person (for example, when donating to an employee), then, according to Art. 226 of the Tax Code, it is the donor who will be obliged to withhold the amount of tax from the donee's funds. If the donation occurs in cash, then such deduction is made even before the transfer of funds to the donee, if in kind - from the following payments after the donation.

Conclusion

Despite a lot of additional features when making a donation on behalf of an organization, such transactions are quite often made in relation to citizens. This is due to the minimum number of requirements, prohibitions and restrictions when donating in favor of individuals.

Of course, many of these transactions are notable for the bad faith of the intentions of their parties, which often leads to contestation and recognition of their invalidity. Apart from this, donation remains an excellent and legal way of gratuitous transfer of property from organizations in favor of citizens.