A donation agreement as a type of civil law transaction is regulated mainly by Art. 582 "Donation" of the Civil Code of the Russian Federation ( Civil Code of the Russian Federation). A donation is considered a kind of donation of a thing and, with a number of reservations, falls under Ch. 32 of the Civil Code of the Russian Federation "Gift".
For your information
A donation to a budgetary institution differs from a regular donation in that the donor has socially useful purpose. With regard to this kind of legal relationship, Art. 582 of the Civil Code of the Russian Federation uses the category "general benefit".
There is no unambiguous opinion about the possibility of donating orally.
Budgetary organizations develop exemplary forms of donation agreements for various cases. Articles 160-161 of the Civil Code of the Russian Federation on simple writing do not require special formalities: it is sufficient that the document contains a reference to the identity of its parties, their signatures and a description of what is being transferred. In case of "voluntary-compulsory" donations, educational and medical institutions usually prepare standard forms for several proposals with three dashes for the amount, full name and signature.
For the purposes of accounting for a budgetary institution, a written registration of a charitable donation is mandatory. For this, credit orders are usually used.
Features of a donation agreement to a budgetary institution
Legal relations arising from a donation agreement to a budgetary institution are specific. They must be distinguished from gifts, sponsorships or donations to charitable organizations and individuals.
Attention
The main distinguishing features of a donation agreement are a socially useful purpose and subject composition.
The charitable organization annually submits to the registration authority activity report with data on spending the donated. Budget organizations are only recommended to include information on the intended use of donations in their accounting records (Form No. 6).
Special conditions regarding the use of a donation may be provided for grant projects. A grant is a transfer of money/property on special terms:
- the transfer is irrevocable and free of charge;
- grantor - an individual or a non-profit structure;
- the purpose of using property/funds is the implementation of certain programs in the humanitarian sphere in advance or the conduct of specific research;
- a detailed report to the grantor on the use of the grant;
- indispensable separate accounting of income/expenses within the framework of the grant;
- establishing a detailed procedure and terms for the use of the grant.
For your information
An ordinary donation agreement may provide for the obligation of a budgetary organization to submit to the donor a report on the spending of the donation. In recent years, this has become part of the usual contractual practice. True, donation agreements rarely stipulate the consequences of failure to provide such reporting.
A budgetary organization that accepts a donation for a specific purpose must maintain separate accounting operations for spending / using donations (part 3 of article 582 of the Civil Code of the Russian Federation). According to the Tax Code of the Russian Federation (Tax Code of the Russian Federation), donations are not included in the tax base for calculating income. Finances provided to budgetary organizations as donations are earmarked revenues and not subject to taxation.
If the use of the property donated by the donor in accordance with the purpose stipulated by the agreement is impossible, it can be used for other purposes with the consent of the donor(part 4 of article 582 of the Civil Code). In the event of the death of a citizen or the liquidation of a legal entity - a donor, permission to change the designated purpose of the donated property should be sought from the court. Although this is not stipulated in the Civil Code, a budgetary organization should apply to the court for a change in the way the property is used in cases where:
- the donor unreasonably refuses to change the method of using the donated property;
- avoids answering, for example, does not answer letters;
- his whereabouts are unknown.
Grounds and procedure for canceling a donation to a budgetary institution
The essence of donation is its social usefulness. That's why misuse donated funds/property was introduced by the legislator into the rank of grounds for the cancellation of this agreement (part 5 of article 582 of the Civil Code).
It is worth considering that "cancellation" is a narrow concept. There are other ways to return the donated, for example invalidate the deal on the grounds specified in § 2 Ch. 9 sub. 4 of the Civil Code of the Russian Federation. The basis may be:
- sham or pretense (Article 170);
- commission by an incapacitated (art. 171), minor (art. 172) or not understanding his actions (art. 177) donor,
- a legal entity in conflict with the statutory purposes (Article 173);
- making a donation due to delusion (art. 178), under the influence of a threat or deceit (art. 179).
Attention
Because Art. 581 of the Civil Code of the Russian Federation does not apply to the legal successors of the donor, the basis for terminating the obligation to donate for the future is the death of the individual who promised or the reorganization of the legal entity. This fact is confirmed by judicial practice.
By virtue of Part 6 of Art. 582 of the Civil Code of the Russian Federation, donations are not subject to Art. 578 of the Civil Code of the Russian Federation. To justify the cancellation of the donation, the benefactor cannot refer to commit an attempt on the life of a donor or his relatives by a representative/head/employee of a budgetary institution. As conceived by the legislator, the commission of unseemly actions by one of the beneficiaries regarding the donor should not deprive other beneficiaries of the opportunity to use the donation.
Grounds for canceling a donation in the manner of Part 5 of Art. 582 of the Civil Code may be contractual and non-contractual. In the first case, the contract contains conditions on the procedure, methods, and terms for the use of donations by a budgetary institution. Their violation, according to Part 2 of Art. 450 of the Civil Code of the Russian Federation, can be regarded as a material breach of the transaction, giving grounds to terminate the contract.
In the second case, there are no conditions on how the donation should be used in the contract. An unsatisfied donor may refer to the general norms of the Civil Code of the Russian Federation on the obligations of the parties to civil legal relations to act reasonably and in good faith (Article 1) and the rules on donation (Article 582 of the Civil Code of the Russian Federation). To justify the cancellation of the contract can be used industry or departmental norms, as well as local regulations of a budgetary organization: constituent documentation, regulation on the procedure for using donations (if approved).
The procedure for canceling a donation in connection with the misuse of the transferred property / GC money not specified. However, it is obvious that the budgetary institution that allowed the misuse of the donation is unlikely to recognize this fact. In this case, the donor should apply to the court.
If the donor is an individual, the case is under the jurisdiction of a court of general jurisdiction; if the organization - to the arbitration court. In addition to the requirement to cancel the donation agreement, the agreement may also contain a vindication requirement - on the seizure of property in kind from a budgetary institution for its transfer to the donor or on the return of funds.
Federal Law No. 7 of January 12, 1996 - Federal Law “On Non-Commercial Organizations”, a budgetary institution is a non-profit organization established by the Russian Federation, a constituent entity of the Russian Federation or a municipality to perform work, provide services in order to ensure the implementation of the powers provided for by the legislation of the Russian Federation, respectively, of state authorities ( state bodies) or local governments in the fields of science, education, healthcare, culture, social protection, employment, physical culture and sports, as well as in other areas.
Information
The legislation of the Russian Federation provides for a budgetary institution as a beneficiary. The donor may donate any thing or property that has not been withdrawn from civil circulation. If the donee is a budgetary organization, then it is advisable to draw up an agreement in writing, so that there are documents confirming the donation, which in our country is not subject to income tax.
How to make a donation in a public institution
According to Art. 582 of the Civil Code of the Russian Federation, a donation of a thing or right for generally useful purposes is recognized as a donation.
A budgetary organization is a state institution created for socially important purposes that are not related to obtaining material benefits. A donation is one of the types of donation, while possessing the main sign of a donation - gratuitousness. Donors, as a rule, for budgetary institutions are individuals or legal entities.
A donation agreement can be concluded either orally or in writing, at the discretion of the benefactor and the donee. Mandatory conclusion of a written contract donations to a public institution:
- if the donor is a legal entity, and the value of his gift exceeds 3,000 rubles;
- if the philanthropist promises to make a donation in the future.
When donating to a budgetary organization, minors and incapacitated individuals cannot be donors. In order to accept a donation, a budgetary institution does not need anyone's permission, that is, in any case it cannot refuse to receive such income.
Attention
Budget institutions have the right to receive donations, both for specific purposes and for urgent needs, the maintenance of the organization.
After undergoing treatment in the oncology department of the regional hospital, Vasily Aleksandrovich Kartoshkin decided to transfer funds to the medical institution for the purchase of expensive drugs for cancer patients.
Between Kartoshkin on the one hand (donor) and the regional hospital represented by the chief physician - Vlasov Ivan Igorevich on the other hand (beneficiary), a written donation agreement was concluded, according to which the philanthropist donated 100 thousand rubles for the purchase of medicines to the oncology department.
Subsequently, Kartoshkin was provided with a report on the use of the donation, according to which medicines for cancer patients were purchased in the amount of 98 thousand rubles. With the written consent of Vasily Alexandrovich, the remaining amount was spent by the hospital administration on the arrangement of a medical institution.
To conclude a donation agreement, a philanthropist must contact the administration of a budgetary institution, or find out the bank account of the organization from the media. The method depends on the subject of the contract (money or property), on the desire to remain an anonymous philanthropist or not.
Terms of the donation agreement to a budgetary institution
In order to avoid problems with the tax authorities, the donation agreement must be drawn up in writing. If the text of the agreement does not contain the benefactor's condition on the use of the item for specific purposes, then such a donation is used for its intended purpose.
Main terms of an agreement donations to a budgetary organization:
- use for public benefit purposes;
- gratuitousness (the donee should not perform any reverse actions in favor of the benefactor);
- the procedure for reporting the donee to the benefactor for the use of the donation;
- terms of execution of the contract (time period or a certain calendar date);
- concretization of the subject of the contract - description, location, qualitative characteristics (it is necessary to avoid generalized wording of the property).
If the parties decide to conclude an agreement in writing, then it is necessary to draw up correctly noting the following points:
- eliminate ambiguous wording in the text of the contract, all proposals must correctly convey the essence of the actions taken;
- the purpose for which the donee must direct the use of the gift is necessarily indicated, otherwise the contract will be recognized as a donation;
- such goal must be clearly defined(for the development of the economic base), to exclude the general phrases: "for the development of an institution or needs." The use of the use of such funds will be recognized as inappropriate.
Important
In the donation agreement, the phrases “sponsorship”, etc. should be avoided. Otherwise, disputes with taxation may arise.
Accounting for donations in a budgetary institution
Accounting for all donations in government organizations at all levels is required. In order to register donated property with a budgetary institution, it is necessary to determine its value. Donations are valued at the original appraised value, at the time of its acceptance under the contract. It is possible to increase the value of the property due to its delivery, registration or repair.
The appraised value of a property is the cash that can be obtained from the sale of a property. The donation is evaluated by the commission of the institution, which operates constantly.
The value of the property can be confirmed by documents or an examination. documentary evidence it can be:
- information from state statistics bodies;
- prices in the media or special editions;
- cost information from manufacturers or vendors;
- assessment by an independent expert.
The receipt of donations is documented by the act of acceptance and transfer, on the basis of this document, the property is taken into account. If there is no act and decision of the commission, then such a donation cannot be included in the accounting of the institution. The use of donations is accounted for in the general manner. When accepting property, it is necessary to determine the code for the type of activity (18), depending on the direction of use of the donation (budgetary activity - 1).
Donation of property to a budgetary institution
Depending on the subject of the donation agreement, it can be concluded both orally and in writing. The donation of real estate must be in writing, however there is no need to register such a contract.
Additionally
The general features of the agreement are established in Art. 582 of the Civil Code of the Russian Federation. Specific details, elements of the text of the agreement must be agreed with the lawyer of the budgetary institution, in order to take into account the features associated with the specifics of the direction of the organization and the legal relationship between the philanthropist and the institution.
The main points that need to be reflected in the contract of donation of property to a budgetary institution:
- the subject of the donation (movable or immovable property not withdrawn from civil circulation. It is necessary to describe it in the text of the agreement, indicate all the characterizing data, otherwise the transaction will be void);
- the purpose of the use and purpose of the donated property;
- method of transfer (personally or through third parties);
- the timing of the report on the use (frequency);
- rights, obligations, responsibility of the benefactor and the donee;
- the procedure for resolving conflicts and disputes.
If the transferred property will be used by the institution not on purpose, then such a transaction will be declared invalid donor (his heirs) in a judicial proceeding.
Donation of funds to a public institution
It is not uncommon for philanthropists to donate funds to budgetary institutions for the purchase of office equipment, expensive medicines, modernization of equipment or premises of the organization.
The donor can donate money:
- banknotes to the accounting department of the institution. For such a transfer, it is necessary to draw up a donation agreement in writing;
- through transfers to a personal account budget institution in the bank. Each organization has an account for receiving donations from citizens and legal entities. The account number can be obtained from the administration of the institution, on the official website. For such an operation, there is no need to conclude a written donation agreement, all the data of the philanthropist (if desired can indicate anonymity), the purpose of the money will be indicated in the receipt order.
Attention
When donating funds, it is necessary to indicate the currency in which the money is transferred, the amount is indicated in numbers and in words.
Conclusion
It is not allowed to use voluntary donations by a budgetary institution for purposes that do not correspond to the statutory activities or the intended purpose under the donation agreement. Responsibility for the misuse of donations lies with the head (or interim head) of the organization.
Question answer
Together with the parents of 11th grade graduates, we decided to donate office equipment, potted plants and household appliances for the dining room to the school at the last call. How can the transfer of such gifts be secured in writing? Is it obligatory to do this or is it enough just to hand over to the school administration?
Parents need to conclude a donation agreement with an educational institution (the representative, most likely, will be the principal of the school), which describes in detail all the donation items so that the school administration can put it on the books and include it in the property of the school. The conclusion of such an agreement is mandatory in your case, so that the administration of the institution had the opportunity to account for the property received, and also that it belonged to the school, and not to the director, who may think that all the donated items were presented specifically to him.
I work as a director of a kindergarten, one of the parents expressed his desire to donate a used stereo system to our institution. What contract is necessary to formalize the transfer, how to determine the value of the property to include it in accounting?
The best option in your case would be to conclude a donation agreement, in which the benefactor will be able to indicate the purpose of the appointment, and the property received will not be taxed. The value of property is determined by a commission established in a budgetary institution, based on documents or an expert assessment. The cost can be clarified with the official manufacturer or supplier, by issuing a certificate, taking into account actual wear and tear.
Want to donate money but don't know how to do it? You need to draw up a donation agreement, for example, to a budgetary institution or other type of organization in your particular case. After all, even such a good intention as a targeted donation to various charitable foundations and organizations, in accordance with the Civil Code of the Russian Federation, must be formalized in a certain way, through an appropriate agreement. In this regard, our specialists, located in the city of Cheboksary, have prepared an appropriate document for you so that you can download for free without registration a simple written standard sample (example) of the form (blank) of an agreement for a charitable donation of funds from an individual or legal entity to a legal entity ( budgetary institution (BU), non-profit organization (NPO), government institution, federal state unitary enterprise, municipal unitary enterprise, school, hospital, church or temple) in accordance with the legislative acts of 2019.
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It is important to know! Must Read
According to the article, a donation is a donation of a thing or right for general benefit. A donation agreement is a type of a donation agreement, regulated by the relevant article of the Civil Code of the Russian Federation, and at the same time, it is not subject to (cancellation of a donation) and (succession upon donation) of the Civil Code of the Russian Federation.
Attention! Nuance #1. If a property donation agreement is concluded with a citizen, then the provision of a donation must necessarily be conditioned by the use of this property for a specific purpose. In the absence of such a condition, a donation of property to a citizen will be considered an ordinary donation. In all other cases, the donated property is used by the donee in accordance with the purpose of the property.
Attention! Nuance #1. If the donor doubts the integrity of the management of the institution to which he wants to transfer funds, then the following instructions must be followed. Since the donation, according to paragraph 3 of Art. 582 of the Civil Code, is a targeted donation, then in order to exercise control in the concluded contract, the purposes and purposes of the funds transferred to the legal entity should be indicated. On the basis of the same norm, the donor has the right to exercise control over the use of the transferred funds for the purpose specified in the agreement. Unfortunately or fortunately, the law does not contain any rules governing such control, therefore, in order to implement it, a section should be included in the donation agreement that will contain a specific procedure, methods and terms for carrying out checks and control over the use of funds. And in case of detection of misuse of funds in violation of the established purpose, the donor has the full right to initiate legal proceedings, in which, on the basis of paragraph 5 of Art. 582 of the Civil Code, she may demand the cancellation of the donation, with the subsequent return of the transferred funds.
According to paragraph 1 of Article 582 of the Civil Code of the Russian Federation, a donation of a thing or right for generally useful purposes is recognized as a donation. Donations can be made citizens, medical, educational organizations, social service organizations and other similar organizations, charitable and scientific organizations, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as the state and other subjects of civil law, specified in (subjects of the Russian Federation: republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts, as well as urban, rural settlements and other municipalities).
As follows from the definition of the donation agreement, things and rights, including: real and movable property, cash and documentary securities, other property, including non-cash funds, non-documentary securities, property rights; results of work and provision of services; protected results of intellectual activity and equivalent means of individualization (intellectual property).
In cases where the use of donated property in accordance with the purpose indicated by the donor becomes impossible due to changed circumstances, it may be used by the recipient of the donation for another purpose, but only with the consent of the donor, and in the event of the death of a citizen-donor or the liquidation of a legal entity - donor court decision.
Accordingly, the use of the donated property not in accordance with the purpose specified by the donor or the change of this purpose without the consent of the donor gives him the right, as well as his heirs or other legal successor, to demand the cancellation of the donation.
Most often, donation agreements are concluded between commercial organizations (donors) and various types of budgetary organizations (schools, kindergartens, boarding schools, hospitals, etc.).
In order to transfer to a budgetary institution the right to use property for generally useful purposes, a donation agreement is concluded. The law singles it out as a separate form of donation. Any object that can be used by the institution for the benefit of society is allowed to donate in this way. The document is drawn up according to the standard plan. At the end of the article, you can download a sample donation agreement for property to a budgetary institution.
When transferring rights to property, the agreement is concluded only in writing. In this case, you will need to register the transfer of rights.
- Subject of the agreement. You must specify all the details of the object, otherwise the transaction may be invalidated.
- Purpose of transferred property and purpose of use.
- Method of transfer - in person or with the participation of a representative.
- Rights and obligations of the parties.
- The procedure for reporting on the use of the object.
- Dispute resolution.
Important! Donated real estate must be used for its intended purpose, otherwise the donor or his heirs may invalidate the transaction through the court.
Structure and differences of the contract
Fundamentally, donation is a form of giving. As a result of the transaction, one party receives property from the other free of charge. Therefore, the form of the contract does not have fundamental differences.
The document consists of the following items:
- Preamble. In the introductory part, the data of the parties are indicated. If the agreement is concluded between legal entities, the form is signed either by the general director or a representative of the organization.
- Subject of the contract. At this point, you need to describe in detail the object transferred as a donation.
- Conditions. This is the procedure for transferring the right to property. Among other things, it is listed how long the object becomes the property, what actions will be taken upon receipt of the gift.
- Rights and obligations. The paragraph indicates for what purpose the object was transferred to a budgetary institution. The conclusion of the contract implies that the gift will be used exclusively for its intended purpose.
- Responsibility of the parties. This includes a reminder that the use of the gift for purposes other than those specified in this agreement is the basis for the cancellation of the donation.
- Settlement of disputes. If disagreements arise during the transfer of a donation or its use, the parties may apply to the court. The specific judicial body is prescribed in this paragraph.
- Other conditions. This paragraph can include the number of copies of the contract, the procedure for making changes and other points not mentioned above.
- Addresses and details of the parties.
If real estate is transferred as a donation, the transfer of rights must be reflected in the USRR. The parties need to decide who will bear the costs associated with registration.
How is a donation different from a donation?
As already mentioned, donation is a form of giving. Then what is the difference between these concepts?
- A donation implies a gratuitous transfer of rights, as a result of which the property can be used by the donee for any (including personal) purposes.
- The donation agreement allows the use of the gift for generally useful purposes, determined by the donor.
Thus, the main difference is the purpose of the gift. When donating property, the donor explains in the contract exactly how the object will be used. In case of non-compliance with this condition, he has the right to cancel the donation through the court.
In some cases, a period may be assigned during which the donee will use the object. It is also allowed to determine the method of controlling the correctness of the disposal of property.
Donations for budgetary institutions: legislative basis
A budgetary institution is an organization that is formed by the state to provide certain services. It focuses its activities on the fulfillment of its tasks, not working for profit.
Donations are covered in Article 582 of the Civil Code. It indicates to which categories of persons a donation can be sent, when permission is required, how the gift should be used.
Important! Municipal institutions are registered as legal entities, so donations to them are made in writing.
We note two more significant nuances reflected in the legislation.
- A budgetary institution does not need to obtain special permission to accept a donation.
- Children under the age of 18, as well as incompetent citizens, cannot donate property.
To draw up an agreement with a budgetary institution, you should go directly to its department. Information about the details of the organization can be obtained through the media.
To prevent disagreements with tax inspectors, the text of the contract should be correctly drafted. Its main differences are the gratuitous transfer and the obligation to use the gift for purposes useful to society.
Also in the compilation play a role:
- specific wording, excluding ambiguous interpretation;
- indication of the duration of the contract;
- a detailed list of the characteristics of the object.
It is allowed to conclude an agreement on donation without the direct participation of the donor and the donee. When representatives are involved, you need to issue a power of attorney for them. A representative of an organization needs a simple written form. In the case of a power of attorney from an individual donor, notarization is required.
Thus, a donation contract is a form of donation. At the same time, the budgetary institution undertakes to use the object for the purposes indicated by the donor and to provide reports in a timely manner. You can download a sample below.
DONATION AGREEMENT
CONSTRUCTION AND ASSEMBLY WORKS
30.11.2016 No. 1-D
Moscow
Limited Liability Company "Beta", we call oh hereinafter "The Donor", represented by CEO Petrov Alexander Ivanovich, acting him based Charter, on the one hand, and Religious organization Orthodox Parish of the Church of the Virgin Mary in Moscow of the Moscow Diocese of the Russian Orthodox Church (Moscow Patriarchate), we call and I further "Gifted", represented by the rector Mikhalkov Sergey Sergeevich, acting him based Charter, on the other hand,collectively referred to as the "Parties", have entered into this Agreementabout the following:
1. THE SUBJECT OF THE AGREEMENT
1.1.
Benefactor under this Agreementmakes a charitable donation in favor of the donee in the form of free of charge of construction and installation worksin accordance with Appendix No. 1 to this Agreement(hereinafter - the gift).
1.2.
The specified construction and installation works are a donation for the implementation of charitable activities aimed at achieving the statutory goals of the donee.
1.3. The Donor carries out the work under this Agreement personally.
fourteen . Gift value according to the estimate (Appendix No. 2 to this Agreement) is RUB 1,500,000 (one million five hundred thousand)
fifteen . Gift transmitted in the moment signing the act of acceptance and transfer of construction and installation works, drawn up in two copies.
2. RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1. Donor undertakes to transfer donee technical and other documentation necessary for the proper possession and use of the result of the work performed.
2.2. The Donor is obliged to start performing work under this Agreement no later thanDecember 1, 2016.
2.3. The donee is obliged to assist the Donor e for the proper fulfillment of obligations under this Agreement, in including provide all necessary information and documentation related to the construction-
installation work.
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The transfer of the gift is carried outat the location of the donee.
2.
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The donee has the right to refuse it at any time before the gift is transferred to him.The refusal of the donee from the gift must be made in writing. form. In this case, the real Dthe agreement is considered terminated from the moment the Donor receives the refusal.
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The Donor's refusal to perform the Agreement does not give the donee the right to claim damages.
2.
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. The terms of this agreement and additional agreements to it are confidential and not subject to disclosure.
3 . FORCE MAJEURE (force majeure)
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.one. The Parties are released from liability for partial or complete failure to fulfill obligations under this Agreement, if the failure was the result of natural phenomena, the actions of external objective factors and other force majeure circumstances for which the Parties did notrespond and prevent the adverse effects of which they do not have opportunities.
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.2. The Parties shall be liable for partial or complete failure to fulfill obligations under this Agreement if there is fault only in cases provided for by law or this Agreement.
4 . DISPUTES RESOLUTION
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.one. All disputes and disagreements that may arise between the Parties on issues that have not found their own reflection The differences in the text of this Treaty shall be resolved through negotiations.
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.2. If disputes are not resolved during the negotiation process, disputes are subject to consideration inMoscow Arbitration Courtin the manner prescribed by applicable law.
5. FINAL PROVISIONS
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1. Any changes and additions to this Agreement are valid provided that they are made in writing and signed by authorized representatives of the Parties.
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.2. Neither Party has the right to transfer its rights and obligations under this Agreement to third parties without the written consent of the other Party.
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. This Agreement is drawn up intwocopies having equal legal force, one copy for each of the Parties.
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. In cases not provided for by this Agreement, the Parties shall be guided by the current legislation of the Russian Federation.
6. LIST OF APPS
!} 6.1. Appendix No. 1 - List of construction and installation works.
6.2. Annex No. 2 - Estimate.
