Real estate and other property in business, in relationships between the state, municipalities and physical persons may involve the donation of facilities and values.How does this kind of procedures are regulated in Russia?
Which area of civil relations legitimately attributed the phenomenon of transfer of property?There are two common treatments are appropriate.In broad terms, transfer of property can be understood as giving a certain material value to any entity status - natural persons, legal entity - in favor of other, legal signs of which also have no value.However, in practice the law of the Russian phrase in question usually involves the relationship at the level of organizations.
free transfer of assets in this context - is a procedure organized within the framework of statutory rules governing mainly the relationship between legal entities.Also, some experts singled out cooperation with the participation of public institutions.
Who can transfer property without compensation?
According to some lawyers, in general, the transfer of property from one organization to another falls under the action interpreted as a "gift."If the relevant legal entity - a commercial company, it means that the restrictions against him, provided 575 th article of the Civil Code.It says that if the amount of property - more than 3 thousand. Rubles, or donate it from one business organization to another is impossible.
companies doing business at the same time, can take the property donated by individuals, non-profit organizations as well as governments.Possible transfer of property from the founder in favor of the company.In this case, its respective activities will be carried out on the rights of natural persons.This transfer of property from the founder will not be taxed as long as the person owns more than 50% of the share capital of the company.
transfer or lease?
Among the discussion points about the issues of regulation of property relations in civil law of Russia - correct use of the term in question.The fact that the phenomenon of transfer of property is very similar to the provision of rent-free property.But this is absolutely not the same thing.
the case of rent-free, it is more correct to use the phrase "transfer of assets for gratuitous use".In this case, to the transferred value remains at its original owner.If it is a donation as such, we have the right to use the term precisely in the sound, which we are now considering it - that is, a procedure called gratuitous transfer of property.
Rental de jure transfer of de facto
But there is a caveat.The fact that the actual content of the relations between individuals or organizations in the aspect of transfer property in both cases may be identical.It can be assumed that one entity will transfer to the other values on a rent-free with a very long period without seeking it back afterwards.Formally, the original owner of the property does not lose the right to property, but de facto it become manager of another person.This nuance makes it possible for many companies to get around a limit of 3 thousand rubles. Set 575 th article, we noted above.Entrepreneurs informally agree that sign an agreement of free rent, but in reality - a business transfers other property in actual possession.
However, as noted by lawyers, free transfer of the leased property - a procedure that requires proper documenting.The agreement between the organizations should, in particular, clearly stated: that the value of the transferred, what are its characteristics and status.If the data in the document is not, then the transaction, as noted by the lawyers, is void.
Also note that some of the limitations associated with the procedure of property for rent, with the participation of commercial entities, is still there.For example, the company - JSC or LLC, can not provide value in the free use of their founders or persons belonging to the governing body.
transmission or gift?
Above we noted that the transfer of property to the property in general is identified with the procedure of giving.In connection with some types of subjects of civil relations under certain conditions, may be limited in their rights to transmit or receive assets - such as commercial organizations that have a limit of 3 thousand. Rubles during such procedures.Many firms circumvent this restriction, take the opportunity to provide (get) the value of rent-free, negotiating with other organizations.However, there is one more legal mechanism by which the interaction between businesses in terms of gratuitous transfer of property will not qualify as a gift.
Its application is possible if we are talking about the relationship of companies and their subsidiaries.The fact that the transfer of property to the ownership of the parent structure in favor of the subsidiary, as a rule, does not qualify as oblagodetelstvovanie.This procedure is recognized as part of the management of tangible assets related to the business.Thus, if the structure between the parent company and its subsidiary is a contract gratuitous transfer of property, it does not qualify as a transaction giving, despite the fact that this kind of agreement, as noted by several lawyers, not prescribed by law.But at the same time, there is no conflict with a provision of the Civil Code.
However, other legal options, in which the transfer of property in a gratuitous manner can somehow "cover", the lawyers do not emit.Some businesses are trying to find loopholes in the law.For example, a common option: entrepreneurs formulate the terms of transactions with the intention to hide the main purpose characteristic of gift - to meet the specific interests, which are at hand to bestow (and lack of them, in turn, the former owner of the property).In practice, this often means that the agreement is accompanied by a donation of property to others in the same source of law, but the parties to the transaction there are swapped and the donor receives in return for other property.So, in a way that endows it did not satisfy their interests and fulfill the conditions of the contract.However, the composition of this kind of contracts, according to lawyers - Error businesses.If the process is accompanied by a donation counter granting - corresponding transaction, if you follow the rules laid down in Article 572 of the Civil Code, is repealed.
differences between these phenomena we can observe in the example of the structure of contracts, reflecting the appropriate type of civil relations.
contract of uncompensated use: Features
Treaty gratuitous transfer of property (sample structure which we are now study) free use subject to the provisions of Chapter 36 of the Civil Code, in particular the 689 th article of the Code.Parties to the Agreement referred to as "lender" and "loan recipient."The second should be contractually obligated to return the property to the first state in which the subject was likely wear (unless the agreement specified otherwise).
the type of contract is advisable to have a simple writing.The types of property that can be transferred to the framework of such an agreement, a variety of real estate, land, equipment, vehicles and other, possessing natural features of value.
What should contain an agreement considered gratuitous transfer of property, the sample structure which we are studying?The most important criterion - include a description of the subject matter hereof.If the property has a document describing it belongs by right of ownership, sources of a technical nature, the details of which should also be used when drawing up the contract.The text of the agreement should also describe the actual state of the property, the degree of wear, possible shortcomings in appearance, etc.The same should contain gratuitous act of transferring property in the free use of which lawyers are also recommended to be to legitimize the appropriate type of civil relations.
Separately should talk about the features of the transfer for use of real estate.
Real estate - for use
free transfer of immovable property in the free use subject to state registration.Such are the demands of Article 131 of the Civil Code.At the same time, it is required to pay the state fee for the corresponding registration services of the competent authorities.However, if the term of the contract - less than a year, then these procedures to make unnecessary.Therefore, in practice, this provision, as noted by the lawyers, is used infrequently: organizations easier, from time to time to renew the contract.
Under the contract giving one party (donor) free transfers or undertakes to transfer to another party (the donee) a thing into ownership or property rights (claims) to itself or to a third party, or releases, or agrees to free her from the property liability to itself or toa third party (Art. 572 CC).
Let us now consider how the free transfer of property made to the property.As we have noted above, from a legal point of view, this procedure is identical donation.Therefore, the contract will be made and the appropriate type.
particularly interesting fact is that the Russian legislation allows for "oral" conclusion of the contract of donation - but only if we are not talking about the cases set out in paragraphs 2 and 4 of Article 574 of the Civil Code.The transaction is considered complete at the same time, when a man, the former owner, Hand value, or documents of title on it, the other, the new owner.However, if the amount of property - more than 3 thousand. Rubles, or enter into a contract of donation should be in writing.At the same time, its structure may be conditions precedent.For example, the promise of a gift in connection with such a holiday.
treaty in question, is supposed to be a deal, both sides of which - obliged.The presenter must transfer the property and gifts to, in turn - to take it.Also, the contract may provide for other obligations for the new owner.For example, the donor may enter into an agreement, provided that the assets to be transferred will be used strictly for a particular purpose.Or, for example, gifts to take on an obligation relates to the preparation stuff carefully.
There is such a thing as the free transfer of municipal property.What are its characteristics?This kind of procedure, as noted in a number of legal sources, can be carried out in order to meet the challenges of social and charitable orientation.Gratuitous transfer of municipal property may be carried out for the benefit of natural or legal persons on the basis of orders of the institution or, in agreement with the authority of the municipality.
case of a transfer of property, the second option is only valid.At the same time, it is possible the transfer of property and free use.However, in this case, the lender signing the contract donation of municipal property in the free use can only be the municipality.Regardless of whether it is real estate or other assets.
consider the fact how the gratuitous transfer of federal property.This procedure may have a different orientation.That is, the property can be transferred from federal ownership to the entity or municipality, and vice versa.
If gratuitous transfer of federal property is carried out in favor of the property subject of the Russian Federation, the corresponding procedure is usually carried out according to the norms of decisions of the regional governments, reflecting the implementation of the Federal Law №122 from 22.08.2004 in the part regarding the transfer of property.
If you have to reverse the procedure - the transfer of ownership of the objects in the region, as a rule, make use of the legal instruments adopted at the regional level, which regulate the procedure for the adoption of federal property.If the region involves the transfer facilities in favor of municipalities, the main source of law also become instruments adopted at the regional level - but only those that govern the relationship with local authorities.The reverse procedure is usually carried out on the basis of regulations, considering the aspect of the division of powers between regional authorities and municipalities.
However, as noted by the lawyers, regional laws, norms which are regulated by the gratuitous transfer of state property, is very similar.In addition, at the level of language suitable legal instruments can observe some consistency with the norms that regulate relations at the municipal level.
relationship budgetary institutions
The variant in which the transfer of property to be budgetary institutions.What are the rules of law apply to this type of relationships?First, we note that the institutions there are two possibilities to get the property free of charge: a gift - from individuals or organizations that do not belong to the state's financial and distribution system, as well as through the transfer from other budget organizations.Consider the features of each option.
The budget - from individuals and legal entities
If the transfer of property budget institution is under a contract of donation, one of the parties to the agreement can be so natural or legal person, the status of a transfer of values does not matter.ADC's source of law governing the relationship between these types of entities in the framework of relevant agreements - 32 th chapter of the Civil Code.
Moreover, the procedure in question, are also regulated by legislation and accounting.Therefore, an important aspect of the process, when on behalf of individuals or organizations in favor of the establishment of the budget is carried out transfer of property - wiring.They should be correct.Here are some examples that reveal the nuances of the procedure.
the budget from individuals and organizations: Posting
assume that the budget structure was a gift some real estate property from a commercial organization.In this case, it must fix this procedure should be double-entry:
- Debit: 2101 02 310 (this "increase in the value of non-residential premises");
- credit: 2401 01 180 (this "other income").
also in the accounting records should reflect the market value of the property received.To do this, experts recommend the use of public information in official sources, data of Rosstat, the announcement of free sale of similar types of property, the services of independent appraisers.
one budget - another
second option, with which it is possible to obtain the property free of budgetary institutions - the transfer of property from another organization with a similar status.This procedure can be carried out:
- between the institutions that the jurisdiction of the governor of the total;
- between institutions reporting to different head structures, but in the budget at the same level;
- between agencies that operate at different levels of the budget;
Note that in this case, it is imperative that after the effected transfer of property, postings have been recorded correctly.
If values are transmitted in the first scenario - between institutions, accountable to one steward, that should be reflected in the accounts following a double entry (in the same example, real estate):
- Debit: 0101 02 310 (ie, "Increasethe value of non-residential premises ");
- Credit: 0 304 04 310 (this "inter-payments").
In the second scenario, debit - the same.