Operations with real estate and other property in business, in relations between state, municipal bodies and individuals may imply the free transfer of relevant objects and values. How are such procedures regulated in Russia?
Subjects of property transfer
To what sphere of civil relations is it legitimate to attribute such a thing as a gratuitous transfer of property? Two common interpretations are relevant here. In a broad sense, the gratuitous transfer of property can be understood as the donation of a certain material value by an entity with any status - an individual, a legal entity - in favor of another, whose legal signs also do not matter. However, in the practice of Russian jurisprudence, the phrase in question, as a rule, implies relationships at the organization level.
Gratuitous transfer of property in this regard is a procedure organized within the framework of statutory provisions governing mainly relations between legal entities. Also, some experts distinguish interaction with the participation of budgetary institutions as a separate category.
Who can transfer property free of charge?
According to some lawyers, in the general case, the transfer of property from one organization to another falls under the action, interpreted as “gift”. If the relevant legal entity is a commercial company, then this means that it is subject to the restrictions provided for in Article 575 of the Civil Code of the Russian Federation. It says that if the amount of property is more than 3 thousand rubles, then donating it from one commercial organization to another is impossible.
A company conducting business, at the same time, can take property free of charge from individuals, non-profit associations, as well as authorities. Possible free transfer of property from the founder in favor of the company. In this case, his corresponding activity will be carried out as an individual. Moreover, the gratuitous transfer of property from the founder will not be taxed, provided that the person owns no more than 50% of the authorized capital of the company.
Transfer or rental?
Among the discussion points regarding the regulation of property relations in Russian civil law is the correct use of the term in question. The fact is that such a thing as the transfer of property free of charge is very similar to the provision of values for free rent. But this is not at all the same thing.
If we are talking about free rent, it is more correct to use the phrase "transfer of property for free use." In this case, the ownership of the transferred value remains with its original owner. If we are talking about donation as such, then we have the right to use the term in the very sound in which we are now considering it — that is, to call the procedure the transfer of property free of charge.
Rent de jure, de facto transfer
But there is one caveat. The fact is that the actual content of the relationship between citizens or organizations in terms of transfer of property in both cases may be the same. It is entirely conceivable that one entity will transfer to another address the value of a free lease with a very long period of time, without requesting it back later. Formally, the original owner of the property does not lose the right of ownership, but de facto another person becomes its manager. This nuance allows many companies to circumvent the limitation of 3 thousand rubles established by article 575, which we noted above. Entrepreneurs informally agree that they will sign a free rental agreement, but in reality - one business transfers the property to another in actual possession.
However, as noted by lawyers, gratuitous transfer of property for rent is a procedure that requires proper documentation. The contract between organizations should, in particular, clearly state: what kind of value is transferred, what are its characteristics and condition. If this data is not in the document, then the transaction, as noted by lawyers, is considered invalid.
Also, we note that there are still some restrictions related to the procedure for providing property for rent with the participation of commercial organizations. For example, a company - AO or LLC, cannot provide values for free use to its founders or to persons included in the governing body.
Transmission or gift?
We noted above that the gratuitous transfer of property to property is generally identified with the donation procedure. In this connection, certain types of subjects of civil relations under certain conditions may be limited in their rights to transfer or receive property - such as commercial organizations that have a limit of 3 thousand rubles during such procedures. Many firms circumvent this limitation by taking the opportunity to provide (receive) values for free rent, negotiating with other organizations. However, there is another legal mechanism in which the interaction between businesses in terms of the transfer of property free of charge will not qualify as a gift.
Its use is possible when it comes to relationships between companies and their subsidiaries. The fact is that gratuitous transfer of property into ownership by the parent structure in favor of a subsidiary, as a rule, does not qualify as a favor. This procedure is recognized as part of the tangible asset management process associated with entrepreneurial activity. Thus, if a contract for the gratuitous transfer of property is concluded between the head structure of the company and its subsidiary, then it is not qualified as a gift transaction, despite the fact that such agreements, as some lawyers note, are not provided for by law. But, at the same time, there is no contradiction to the norms of the Civil Code of the Russian Federation.
At the same time, lawyers do not distinguish other legal options in which the transfer of property at no cost can somehow be "masked". Some businesses are trying to find loopholes in the law. For example, there is such an option: entrepreneurs formulate the terms of transactions, intending to hide the main goal characteristic of the gift - the satisfaction of specific interests that the endowed party has (and the previous owner of the property does not have them). In practice, this most often means that the contract for the gratuitous transfer of property is accompanied by another same source of law, but the parties to the transaction in it change places and the donor receives other property in return. It turns out, in such a way, that the gifted did not satisfy his interests, but fulfilled the terms of the contract. However, drafting contracts of this kind, according to lawyers, is a business mistake. If the donation process is accompanied by counter-grants, the corresponding transaction, if you follow the standards set forth in Article 572 of the Civil Code of the Russian Federation, is invalid.
We can observe the differences between the two considered phenomena by the example of the structure of contracts reflecting the corresponding type of civil relations.
Contract for gratuitous use: features
The contract for the gratuitous transfer of property (a sample of the structure of which we will now study) for free use is regulated by the provisions of the 36th chapter of the Civil Code, in particular the 689th article of the Code. The parties to the relevant agreement are referred to as the “lender” and the “lender”. The second must under the contract undertake to return to the first the property in the condition in which it received taking into account the possible depreciation (unless otherwise specified in the agreement).
The appropriate type of contract is recommended to be concluded in simple written form. The types of property that can be transferred under such an agreement are very different: real estate, land, equipment, transport, and other values with natural attributes.
What should the considered contract of gratuitous transfer of property contain, a sample of the structure of which we are studying? The most important criterion is the inclusion of the description of the subject of the agreement. If the property has documents characterizing its ownership by the right of ownership, sources of a technical nature, then information from them should also be used in the preparation of the contract. The text of the agreement should also describe the actual state of values, the degree of depreciation, possible flaws in appearance, etc. The same should be included in the act of transferring gratuitous property for free use, which lawyers also recommend drafting to legitimize the corresponding type of civil relationship.
Separately, we should talk about the features of the transfer to use of real estate.
Real estate - for use
Gratuitous transfer of real estate for free use is subject to state registration. these are the requirements of the 131st article of the Civil Code of the Russian Federation. In this case, it will be necessary to pay the corresponding state fee for registration services of the competent authorities. However, if the term of the contract is less than a year, then these procedures are optional. Therefore, in practice, this rule, as noted by lawyers, is rarely applied: it is easier for organizations, from time to time, to renegotiate contracts.
Under a gift agreement, one party (donor) transfers or undertakes to transfer the thing to the property or property right (claim) to itself or to a third party free of charge or undertakes to release or undertakes to release it from its property obligation to itself or to a third party (Article 572 of the Civil Code).
Let us now consider how free transfer of property to property is carried out. As we noted above, from a legal point of view, this procedure is identical to donation. Therefore, the contract will be drawn up of the appropriate type.
Gift contract: features
An interesting fact is that the legislation of the Russian Federation allows an “oral” conclusion of a donation contract - but only if it is not a case of cases that are set out in paragraphs 2 and 4 of Article 574 of the Civil Code of the Russian Federation. The transaction is considered complete when the person, the former owner, hands the value, or title documents to it, to another, new owner. At the same time, if the amount of property is more than 3 thousand rubles, then you must conclude a gift agreement in writing. Moreover, in its structure there may be suspensive conditions. For example, the promise of a gift in connection with such a holiday.
The contract in question is intended to be a transaction, both parties of which are obligated. The donor must transfer the property, and the donor, in turn, accept it. Also, the contract may provide for other obligations for the new owner. For example, the donor may conclude an agreement provided that the transferred property will be used strictly for a specific purpose. Or, for example, the gifted person will undertake to treat the received thing carefully.
Municipal property
There is such a thing as gratuitous transfer of municipal property. What are its features? This kind of procedure, as noted in a number of legal sources, can be carried out in order to solve social or charitable tasks. Gratuitous transfer of municipal property may be carried out in favor of individuals or legal entities on the basis of an order of the institution, or, in agreement with the municipal authority.
If we are talking about the transfer of real estate, then only the second option is permissible. At the same time, property can also be transferred for free use. True, in this case, only the municipality can be a lender signing a contract for the gratuitous transfer of municipal property for free use. Regardless of whether it is real estate or other assets.
Federal property
Let us also consider how the federal property is donated. This procedure may have a different focus. That is, property can be transferred from federal property in favor of a subject or municipality, and vice versa.
If the free transfer of federal property is carried out from the property of the subject in favor of the Russian Federation, then the corresponding procedure, as a rule, is carried out in accordance with the norms of resolutions of regional governments, reflecting the implementation of Federal Law No. 122 of 08/22/2004 with regard to the transfer of property.
If the reverse procedure is ahead - the transfer of objects into the ownership of the region, then, as a rule, legal acts adopted at the subject level that govern the procedure for the adoption of federal property are involved. If the region intends to transfer objects in favor of municipalities, then acts adopted at the level of the subject also become the main source of law - but only those that regulate relations with local governments. The reverse procedure, as a rule, is carried out on the basis of normative acts that consider the aspect of delimitation of powers between regional authorities and municipalities.
At the same time, as lawyers note, regional laws, the norms of which govern the free transfer of state property, are very similar to each other. In addition, at the level of wording of the relevant legal acts, one can observe a certain uniformity of norms with those that govern relations at the municipal level.
The relationship of budgetary institutions
A variant is possible in which there is a gratuitous transfer of property to a budget institution. What legal provisions apply for this type of relationship? First of all, we note that an institution has two possibilities to receive property free of charge: as a gift - from individuals or organizations that are not related to the state financial distribution system, as well as through transfer from other budget organizations. Consider the features of each of the options.
To the budget - from individuals and legal entities
If the gratuitous transfer of property to a budgetary institution is carried out under a gift agreement, then one of the parties to the agreement may, therefore, be an individual or legal entity, the status of the subject of the transfer of values does not play a role. The main source of law governing relations between these types of entities under the relevant agreements is the 32nd chapter of the Civil Code of the Russian Federation.
In addition, the procedure in question is also regulated by accounting legislation. Therefore, an important aspect of the process is when on behalf of individuals or organizations in favor of a budgetary institution, property is transferred free of charge - transactions. They must be correct. Let's look at a few examples that reveal the nuances of this procedure.
To the budget from individuals and organizations: posting
Suppose that the budget structure received a gift of some real estate property from a commercial organization. In this case, she should fix this procedure with the following double entry:
- debit: 2 101 02 310 (this is an “increase in the value of non-residential premises");
- loan: 2 401 01 180 (this is “Other income”).
Also, in the accounting documentation, it is necessary to reflect the market value of the received real estate. For this, experts recommend using public information in official sources, data from Rosstat, announcements of free sale of similar types of property, and services of independent appraisers.
One budget to another
The second option, in which it is possible to receive property free of charge by a budget institution, is the transfer of values from another organization with the same status. This procedure can be carried out:
- between institutions that are subordinate to the general manager;
- between organizations reporting to different head structures, but within the budget at the same level;
- between institutions operating at different levels of the budget;
Note that in this case, it is imperative that after the gratuitous transfer of property has been completed, the postings are recorded correctly.
- , , ( ):
- : 0 101 02 310 ( , " ");
- : 0 304 04 310 ( " ").
- . : 0 401 01 180 ( " "). - . : 0 104 10 410 ( " ").