Benefits for charities. Accounting and taxation of philanthropists. How to reflect the provision of charitable assistance in postings

Taxation of charitable contributions depends on who is the subject of charitable activity. In our article, we will consider tax nuances for charitable foundations, charitable organizations and beneficiary organizations.

Charitable foundation: legal aspects

A charitable organization is a general concept for specially created associations involved in charity. According to the Law No. 135-FZ of August 11, 1995, “On Charitable Activity and Charitable Organizations”, charitable organizations must be non-commercial, without the participation of the state or its subjects. They can be created in the form:

• public organizations (associations) - art. 6 of the Law "On Non-Commercial Organizations" dated January 12, 1996 No. 7-FZ;
• funds - art. 7 of Law No. 7-FZ;
• institutions (if the founder is a charitable organization) - art. 9 of Law No. 7-FZ, etc.

Charitable organizations must keep accounting and reporting in accordance with paragraph 1 of Art. 19 of Law No. 135-FZ. The annual report must be publicly available; it is also submitted to the body that made the decision on the state registration of such an organization, and to the tax authority (clauses 2-3 of article 19 of law No. 135-FZ).

What is a charitable foundation (hereinafter - CF)? This is a non-profit organization (NPO), which can be established by citizens or legal entities at the expense of voluntary contributions for charitable purposes (Article 7 of Law No. 7-FZ). The BF is the owner of the property that was transferred to it as contributions by the founders. The objectives of the BF should be spelled out in the charter. The Board of Trustees is the main body of the BF.

What taxes does a charitable foundation pay?

By default, all legal entities, including the BF, must apply the general taxation system, unless they have switched to a special regime. Accordingly, the system of taxation of a charitable foundation determines what requirements of the Tax Code of the Russian Federation it must follow and what taxpayer it is.

The CF has the right to conduct entrepreneurial activities, for example, to produce goods that meet the objectives of the CF, to buy and sell securities, to participate in business companies, etc. In this case, the profit goes to the goals of the CF and cannot be distributed among the participants. Entrepreneurial income and expenses are accounted separately from income and expenses from statutory charitable activities.

ATTENTION! If a charitable foundation (like other NGOs) conducts only statutory activities and is not engaged in entrepreneurial activities, the obligation to submit accounting and tax reporting is not removed from it.

Charitable foundation and income tax

For the purposes of income tax (hereinafter referred to as NP) and tax under the simplified tax system, taxation of charitable contributions that go to the BF takes place in accordance with subpara. 14 p. 1 art. 251, paragraph 2 of Art. 251 and sub. 1 p. 1.1 art. 346.15 of the Tax Code of the Russian Federation: targeted financing and targeted revenues are not recognized as income. Target funds can be transferred from the budget, state, municipal institutions, extra-budgetary funds, individuals and legal entities, from other sources listed in the Tax Code.

For a negative answer to the question of whether charitable assistance received by the Charitable Foundation is taxable, the following conditions must be met:

• use of gratuitously received funds for the intended purpose and within the specified period;
• the use of these funds for the conduct of activities under the charter or the maintenance of the CF;
• maintaining separate records of income and related expenses within the framework of targeted revenues.

If any condition is not met, then such receipts are included in the taxable base. It is important to set out in detail in the charter the goals of the Charity Fund, what activities it can conduct and what expenses it will have.

ATTENTION! NP is paid only when doing business. However, if the BF is not engaged in business, then it must still submit zero declarations.

NP payers include all Russian organizations (Clause 1, Article 246 of the Tax Code of the Russian Federation), including NCOs. And all taxpayers are required to submit declarations (clause 1, article 289 of the Tax Code of the Russian Federation). If the NCO does not pay the NP, then it has the right to submit a simplified declaration form based on the results of the tax period (clause 2, article 289 of the Tax Code of the Russian Federation).

Charitable foundation and VAT

For VAT, taxpayers are any organizations (clause 1, article 143 of the Tax Code of the Russian Federation). The obligation to submit declarations lies with all taxpayers (clause 5 of article 174 of the Tax Code of the Russian Federation), therefore, zero declarations must be submitted even in the absence of taxable transactions.

In this connection, charitable activities are not subject to VAT? If money is donated as assistance, then the object of taxation for VAT does not arise in accordance with Art. 146 of the Tax Code of the Russian Federation. If there is a transfer of goods or property rights, then subpara. 12 p. 3 art. 149 of the Tax Code of the Russian Federation, according to which such operations (except for excisable goods) are not subject to VAT. To confirm such VAT-free transactions, you must:

• comply with the goals of the BF in accordance with the charter;
• have documents confirming the gratuitous transfer.

If the recipient of assistance is a legal entity, such documents may be an agreement with the recipient, acts of acceptance and transfer. For individuals, a document is required confirming that the assistance has been received (letter of the Ministry of Finance of the Russian Federation of October 26, 2011 No. 03-07-07 / 66).

CFs that carry out both taxable and non-VATable transactions are required to keep separate records (Clause 4, Article 149 of the Tax Code of the Russian Federation), the rules of which are specified in the accounting policy. For purchases for charitable purposes, the input VAT is taken into account in the purchase price and is not accepted for deduction (subclause 1, clause 2, article 170 of the Tax Code of the Russian Federation). For purchases for commercial purposes, VAT can be deductible, and sales will be subject to tax.

According to paragraph 5 of Art. 149 of the Tax Code of the Russian Federation, when submitting an appropriate application to the tax authority, it is possible to refuse exemption from VAT on charitable transactions - then you can deduct the corresponding input VAT, which sometimes turns out to be more profitable.

Charitable foundation and payroll taxes

When paying income to individuals, you need to remember about personal income tax and social contributions. If there were no such payments, and employees work on a voluntary basis (clause 2, article 7.1 of law No. 135-FZ), then the 2-NDFL certificate and the 6-NDFL calculation are not submitted, since the BF will not be considered a tax agent (clause 1 article 226 of the Tax Code of the Russian Federation). When providing charitable assistance to individuals for the purpose of exempting these payments from personal income tax, Art. 217 of the Tax Code of the Russian Federation: payments from charitable organizations are exempt from personal income tax (clause 8.2 of article 217 of the Tax Code of the Russian Federation).

For insurance premiums, payers are insurers who make payments to insured persons. The BF reports to the tax authorities on these payments and contributions. If there are no payments, but there are insured persons (employees, individual contractors), a zero calculation is submitted. This is what officials demand (letters of the Ministry of Finance dated March 24, 2017 No. 03-15-07 / 17273, the Federal Tax Service dated April 12, 2017 No. BS-4-11 / [email protected]). It is not necessary to hand over the calculation only if the insured are absent. But it is difficult to imagine such a situation.

Charitable foundation and other taxes

The property of a charitable foundation is also subject to taxation. For property tax, taxpayers are organizations that own property that is the object of this tax. If the property is not on the balance sheet, then the declaration is not submitted at all. If an NPO has property that is subject to tax, then it is necessary to pay property tax and submit appropriate calculations and declarations (exceptions in Article 381 of the Tax Code of the Russian Federation). This obligation rests with the NCO, whether or not it is engaged in entrepreneurial activity.

At the same time, NCOs do not charge depreciation on fixed assets received under targeted programs and participating in non-commercial activities (subclause 2, clause 2, article 256 of the Tax Code of the Russian Federation). For such assets, property tax is considered in accordance with paragraph 1 of Art. 375 of the Tax Code of the Russian Federation.

What other taxes does a charitable foundation pay? As for the transport tax, it is paid and the declaration is submitted if vehicles are registered on the BF (Article 357 of the Tax Code of the Russian Federation). Similarly, with land tax: reporting is carried out only by those legal entities and individuals who own land plots on the basis of ownership, permanent use or lifelong possession (clause 1, article 388 of the Tax Code of the Russian Federation).

Is charitable assistance for grassroots organizations taxable?

In addition to the Charity Fund, ordinary legal entities can also participate in helping those in need. For VAT, the situation is similar to that considered for the BF. When a philanthropist makes a donation in the form of goods, works, services directly to the beneficiary, VAT is not charged on such a transfer. In addition, during the same charitable operations to a charitable organization that is registered in accordance with all the rules, VAT is also not charged, since such a transfer is not considered a sale (subclause 3, clause 2, article 39 of the Tax Code of the Russian Federation).

For the purposes of NP, socially responsible organizations do not have benefits. Charitable payments are not recognized as expenses in accordance with paragraphs. 16 and 34 st. 270 of the Tax Code of the Russian Federation.

Income tax for beneficiaries

As a general rule, assets received free of charge fall under the NP (clause 8, article 250 of the Tax Code of the Russian Federation). However, if the donation is received by a non-commercial legal entity, then it is not included in taxable income (subclause 1, clause 2, article 251 of the Tax Code of the Russian Federation). At the same time, it is better to describe in detail in the contract that the purposes of the donation are generally beneficial and comply with Art. 2 of Law No. 135-FZ. For example, a construction company carried out repairs in a polyclinic free of charge, an individual entrepreneur donated textbooks to a school, an organization organizing events held a concert in a kindergarten for free. All listed budgetary institutions do not have to pay IR on these gifts. In addition, there are other targeted revenues named in paragraph 2 of Art. 251 of the Tax Code of the Russian Federation, under the description of which a charity event may fit, thereby freeing the recipient from the NP.

Results

Charitable activities in our country fall under some benefits. All philanthropists are exempt from the corresponding VAT. Specialized charitable organizations have NP benefits, which are not available to ordinary commercial companies with an active charitable policy.

The issue of taxation of VAT when transferring funds as financial assistance in the framework of charitable activities is considered by the experts of the Legal Consulting Service GARANT Stepan Arykov and Elena Koroleva.

The organization provided charitable financial assistance to the city administration in accordance with an agreement on cooperation in social events significant for the city, concluded earlier, as well as a letter. The organization transferred the sum of money stipulated in the letter at the expense of net profit. Is this payment subject to VAT?

In accordance with Art. 1 of the Federal Law of August 11, 1995 N 135-FZ "On Charitable Activities and Charitable Organizations" (hereinafter - Law N 135-FZ), charitable activities are understood as voluntary activities of citizens and legal entities for disinterested (gratuitous or on preferential terms) transfer to citizens or to legal entities of property, including funds, disinterested performance of work, provision of services, provision of other support.

Charitable activities are carried out for the purposes specified in paragraph 1 of Art. 2 of Law N 135-FZ.

The provision of charitable assistance can be qualified as a donation (gratuitous transfer). Therefore, the rules established for a gift agreement by Chapter 32 of the Civil Code of the Russian Federation should be applied.

Thus, under a donation agreement, one party (the donor) transfers or undertakes to transfer to the other party (the donee) a thing in ownership or a property right (claim) to itself or to a third party, or releases or undertakes to release it from a property obligation to itself or to a third party. (Clause 1, Article 572 of the Civil Code of the Russian Federation).

A special type of gift is a donation. By virtue of paragraph 1 of 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. Donations can be made to citizens, medical, educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational organizations, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as to the state and other subjects of civil law specified in Art. 124 of the Civil Code of the Russian Federation.

The decision of the Supreme Arbitration Court of the Russian Federation dated June 21, 2013 N VAC-4606/13 states that the gratuitous transfer of property is a sign of a donation, therefore, a donation implies the will of the donor, who intends to transfer his property to another person free of charge with the intention of doing good, and not on any other basis. Such intention must be clearly expressed by the person making the donation.

It should be noted that on the basis of the second paragraph of paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, in the presence of a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. The rules provided for in paragraph 2 of Art. 170 of the Civil Code of the Russian Federation.

Before proceeding to consider the taxation of donations, let us dwell on the meaning of the concepts of “donation” and “charitable donation”, as well as how to correctly arrange the transfer of a donation (charitable donation). The qualification of the transferred object of civil rights as a donation (charitable donation) is essential for the justified application of tax benefits. In particular, in order to apply a tax benefit, it is important to legally correctly draw up documents for the transfer of a donation (charitable donation).

The concept of "donation" and "charitable donation"

The concept of donation. The Civil Code of the Russian Federation considers donation as a special kind of donation. The concept of "donation" is disclosed in paragraph 1 of Art. 582 of the Civil Code of the Russian Federation. A donation is recognized as a donation for generally useful purposes of the following objects of civil rights:

• rights

Objects of civil rights are recognized as a thing, including cash and documentary securities, other property, including non-cash funds, non-documentary securities, property rights (Article 128 of the Civil Code of the Russian Federation).

Donation for general benefit is a prerequisite for donation. However, that in the legislation the content of the concept of generally useful purposes is not disclosed. Its significance can be found in the law enforcement practice of arbitration courts.

For example,

The Federal Antimonopoly Service of the Moscow District in its Resolution dated August 5, 2014 in case No. А40-155682/2013 noted:

- “Generally useful goals should either take into account the national interests of the state in which this or that person operates, or be aimed at achieving goals that benefit not only (not so much) the donors and the donee, but society as a whole.”

The court considered a situation in which a certain Foundation concluded an Agreement with the US Agency for International Development (USAID), the purpose of the Agreement was defined as support for an election monitoring program in the Russian Federation. During the court session, the comments of the official representative of the Russian Foreign Ministry on the termination of the activities of the donor in Russia were considered due to the fact that the nature of the work of the Agency's representatives in our country did not always meet the stated goals of promoting the development of bilateral humanitarian cooperation. We are talking about attempts to influence political processes through the distribution of grants…. As a result, the courts found that the transfer of funds to the fund cannot be considered as made for generally useful purposes and qualify for tax exemption as a donation.

Donations can be directed to:

• citizens;
• medical, educational institutions, institutions of social protection and other similar institutions;
• charitable, scientific and educational organizations;
• funds;
• 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 Art. 124 of the Civil Code of the Russian Federation (Russian Federation, subjects of the Russian Federation, municipalities).

A donation is formalized by an agreement, which is drawn up in a simple written form.

Such an agreement must contain:

• donation item;
• specific general benefit purposes of the donation;
• the status of the donee must comply with the above requirements of the Civil Code of the Russian Federation.

The contract of donation of property to a citizen must also contain information about the use of this property for a specific purpose, otherwise it will be considered a donation. There are no such requirements for contracts with legal entities.

An equally important feature of a donation agreement is its gratuitousness, i.e. providing the donation item free of charge, without a counter provision from the receiving person. The presence of counter obligations is not recognized by the donation agreement.

The concept of "charitable donation"

The transfer of charitable donations is regulated by the Federal Law "On charitable activities and charitable organizations" No. 135-FZ of August 11, 1995. According to Art. 5 of the Law, charitable donations are made in the following forms:

• disinterested (gratuitous or on preferential terms) transfer of ownership of property, including monetary funds and (or) objects of intellectual property;
• disinterested (gratuitous or on preferential terms) granting the rights of possession, use and disposal of any objects of property rights;
• disinterested (gratuitous or on preferential terms) performance of work, provision of services.

The transfer of a charitable donation must comply with the objectives set out in Art. 2 Laws.

Charitable activities have the right to engage in citizens and legal entities with or without the formation of a charitable organization.

A charitable donation agreement, like a donation agreement, must also be concluded in writing. In terms of content, it must fully comply with the requirements of the Federal Law “On Charitable Activities and Charitable Organizations” No. 135-FZ of August 11, 1995, including, in terms of the object of the donation, the purpose of the donation and the status of the beneficiary.

Taxation of donations

The taxation of donations differs for individual and corporate donors. Let's consider the features separately.

For individuals.

Personal income tax.

For individual donors, Russian legislation provides for tax benefits in the form of tax deductions for personal income tax.

In particular, when determining the tax base for personal income tax, the taxpayer has the right to receive a social tax deduction in the amount of income transferred in the form of donations:

• charitable organizations;
• socially oriented non-profit organizations to carry out the activities provided for by the legislation of the Russian Federation on non-profit organizations;
• non-profit organizations operating in the field of science, culture, physical culture and sports (with the exception of professional sports), education, enlightenment, healthcare, protection of human and civil rights and freedoms, social and legal support and protection of citizens, assistance in protecting citizens from emergency situations , environmental protection and animal protection;
• religious organizations to carry out their statutory activities;
• non-profit organizations for the formation or replenishment of the target capital, which are carried out in the manner established by the Federal Law of December 30, 2006 No. 275-FZ "On the procedure for the formation and use of the target capital of non-profit organizations".

The tax deduction is provided in the amount of expenses actually incurred by the taxpayer, but not more than 25 percent of the amount of income received by him in the tax period and subject to taxation (Article 219 of the Tax Code of the Russian Federation).

For organizations. income tax

For organizations on income tax, Russian legislation does not establish any benefits. Donations (charitable donations) do not reduce the income tax base as they are not aimed at generating income.

For example, in p.p. 16 and 34 st. 270 of the Tax Code of the Russian Federation explicitly states that the cost of property transferred free of charge (works, services, property rights) and the costs associated with such a transfer, as well as the amount of targeted deductions for the purposes specified in paragraph 2 of Art. 251 of the Tax Code of the Russian Federation are not included in tax expenses.

The Ministry of Finance of Russia in the Letter No. 03-03-06/4/13800 dated April 22, 2013 holds a similar opinion. As noted by the Ministry of Finance of the Russian Federation for the purposes of Ch. 25 of the Tax Code of the Russian Federation, economically justified costs incurred for the implementation of activities aimed at generating income are accepted. Donations (charitable donations), according to the tax authority, are the voluntary will of the taxpayer, which has no economic justification. Therefore, attributing donations (charitable donations) to expenses does not comply with the principles for determining expenses provided for in Ch. 25 of the Tax Code of the Russian Federation.

value added tax

VAT charitable donations in accordance with sub. 12 p. 3 art. 149 of the Tax Code of the Russian Federation. According to this rule:

- “not subject to taxation (exempted from taxation) on the territory of the Russian Federation ... the transfer of goods (performance of work, provision of services), transfer of property rights free of charge as part of charitable activities in accordance with the Federal Law “On Charitable Activities and Charitable Organizations”, with the exception of excisable goods".

As indicated above, in order to justify the legitimacy of applying the benefits, it is important to correctly draw up all the documents. It should be noted that the Federal Tax Service of the Russian Federation for Moscow in Letter No. 16-15 / 126825 dated December 2, 2009 provides an approximate list of documents that, in the opinion of the tax authority, are necessary to apply the tax exemption for the transfer of charitable donations.

The transfer of funds is not subject to VAT on the basis of paragraph 3 of Art. 39 of the Tax Code of the Russian Federation.

Good morning. Please tell me how you need to draw up the documents (including VAT) and which ones exactly when the goods are given away as a charity?

To be more specific:
LLC on OSNO bought a uniform for children (for charitable purposes) without VAT and gave them to the school.
1. What kind of documentation (primary, accounting including) should be?
2. Waybills and invoices with VAT (WE ARE BASIC)?
3. What postings in accounting and tax accounting should be?
4. LLC on OSNO can reduce the tax base by the amount of charity, or should these expenses be written off solely at the expense of net profit?

The charitable nature of assistance (donations) is confirmed by the following documents (Letter of the Ministry of Finance of October 26, 2011 N 03-07-07 / 66):
1) an agreement with the recipient of such assistance - an individual or a non-profit organization. It must necessarily indicate that property (work, services) is donated for charitable purposes;
2) an act or other document on the acceptance of property (works, services), signed by the recipient of charitable assistance;
3) if the beneficiary is a non-profit organization - a document confirming the use of the received goods (works, services) in the framework of charitable activities
For the purposes of income tax, the cost of property (works, services) that was donated as charitable assistance, as well as the costs associated with such a transfer (for example, the cost of delivery), are not taken into account in expenses (paragraph 16 of article 270, paragraph 1 article 346.16 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 04.04.2007 N 03-03-06 / 4/40).
VAT on the gratuitous transfer of property (except for excisable goods), the performance of work, the provision of services for charitable purposes does not need to be charged (clause 12, clause 3, article 149 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 10.20.2011 N 03-07-07 / 61) .
In accounting, expenses for charity are reflected as other expenses (Letter of the Ministry of Finance of October 20, 2011 N 07-02-06 / 204).
Postings, depending on what is being transferred - money or other property, will be as follows:

Wiring
Operation
D 91 - K 60
Reflected the cost of acquiring property specifically for donation for charitable purposes
D 91 - K 01 (10, 41, 43)
Reflects the cost of fixed assets or inventories transferred as charitable assistance
D 91 - K 50 (51)
Money donated to charity

Value Added Tax (VAT)

The transfer of goods (with the exception of excisable goods) free of charge as part of charitable activities, in accordance with the Federal Law "On Charitable Activities and Charitable Organizations", is exempt from VAT on the basis of paragraphs. 12 p. 3 art. 149 of the Tax Code of the Russian Federation.
Consequently, the "input" VAT on the transferred goods, previously accepted for deduction, must be restored in the amount in which it was accepted for deduction. The recoverable amount of VAT is not included in the cost of goods, but is taken into account as part of other expenses in accordance with Art. 264 of the Tax Code of the Russian Federation. VAT is restored in the tax period in which goods are transferred as part of charitable activities (clause 2 clause 3, clause 1 clause 2, paragraphs 2, 3, 4 clause 2 clause 3 article 170 of the Tax Code of the Russian Federation) .

Corporate income tax

The cost of goods donated free of charge is not included in expenses (clause 16, article 270 of the Tax Code of the Russian Federation).
There are two positions on the issue of recognition as expenses for tax purposes of profits of the amount of VAT recovered upon the gratuitous transfer of goods (not subject to VAT).
The first position is that the VAT restored in connection with the gratuitous transfer of property is not included in expenses on the basis of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation (as an expense associated with the gratuitous transfer of property).
The second position is based on the clarifications of specialists from the Ministry of Finance of Russia and consists in the fact that VAT recovered on the transfer of property free of charge can be included in other expenses associated with production and sale on the basis of paragraphs. 1 p. 1 art. 264, paras. 2 p. 3 art. 170 of the Tax Code of the Russian Federation (Letter dated 19.08.2008 N 03-03-06 / 1/469, response from the consultant of the department of indirect taxes of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia E.N. Vikhlyaeva).

At the written request of a non-profit organization, it was provided with charitable assistance - a commercial organization handed over dosimetric equipment (of its own production), the total cost of which is 6,000 rubles. What is the procedure for accounting and tax accounting in this situation for a commercial organization (general taxation regime)?

In accordance with the Federal Law of the Russian Federation of 11.08.1995 N 135-FZ "On charitable activities and charitable organizations" (hereinafter - Law N 135-FZ), charitable activities are understood as voluntary activities of citizens and legal entities on a disinterested (gratuitous or on preferential terms) transfer of property to citizens or legal entities, including funds, disinterested performance of work, provision of services, provision of other support.

At the same time, charitable assistance is provided only for the purposes listed in Law N 135-FZ, and only to individuals or non-profit organizations (clause 2, article 2 of Law N 135-FZ), which can be created, in particular, in the form of public or religious organizations (associations), to achieve social, charitable, cultural, meet the spiritual and other non-material needs of citizens (Article 2 of the Federal Law of January 12, 1996 N 7-FZ "On Non-Profit Organizations" (hereinafter - Law N 7-FZ)).

In accordance with paragraph 2 of Art. 2 of Law N 135-FZ, charitable activities are carried out, in particular, for the purposes of:

• promotion of activities in the field of education, science, culture, art, enlightenment, spiritual development of the individual;
• promoting activities in the field of prevention and protection of the health of citizens, as well as promoting a healthy lifestyle, improving the moral and psychological state of citizens;
• promotion of activities in the field of physical culture and mass sports.

Thus, in our opinion, own products, which the organization donates to the Center for the Art of Physical Culture of Children with Disabilities, should be considered as charitable assistance.

The agreement on the provision of charitable assistance is closest to the contract of donation, in particular such a variety of it as a donation.

The rules for drawing up these types of contracts are established in Chapter 32 of the Civil Code of the Russian Federation.

So, according to paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, under a donation agreement, one party (the donor) transfers free of charge or undertakes to transfer to the other party (the donee) a thing in ownership or a property right (claim) to itself or to a third party, or releases or undertakes to release it from a property obligation to itself or to a third face.

In accordance with 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. Donations can be made to citizens, medical, educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational institutions, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as to the state and other subjects of civil law specified in Art. 124 of the Civil Code of the Russian Federation.

Please note: given that in this situation the donor is a legal entity and the value of the gift exceeds three thousand rubles, the donation agreement under which the funds are transferred must be concluded in writing, otherwise it will be considered void (clause 2 of article 574 of the Civil Code RF).

VAT

According to paragraphs. 1 p. 1 art. 146 and paragraph 1 of Art. 39 of the Tax Code of the Russian Federation for the purpose of calculating VAT, the transfer of ownership of goods (works, services) on a gratuitous basis is recognized as the sale of goods (works, services) and is an object of taxation.

The tax base for a gratuitous transfer is determined on the basis of market prices in the manner similar to that provided for in Art. 40 of the Tax Code of the Russian Federation (clause 2 of article 154 of the Tax Code of the Russian Federation).

However, in accordance with paragraph 2 of Art. 146 of the Tax Code of the Russian Federation, the operations specified in paragraph 3 of Art. 39 of the Tax Code of the Russian Federation.

Subparagraph 3 of paragraph 3 of Art. 39 of the Tax Code of the Russian Federation provides that the transfer of fixed assets, intangible assets and (or) other property to non-profit organizations for the implementation of the main statutory activities not related to entrepreneurial activity is not recognized as the sale of goods, works or services.

Thus, the gratuitous transfer of finished products (dosimetric equipment) to a non-profit organization is not subject to VAT (there is no object of taxation), but only if such products are transferred for the implementation of the statutory goals of a non-profit organization.

In addition, with a gratuitous transfer, it must be borne in mind that Art. 149 of the Tax Code of the Russian Federation defines transactions that are not subject to VAT in the territory of the Russian Federation. So, in accordance with paragraphs. 12 p. 3 art. 149 of the Tax Code of the Russian Federation, the transfer of goods (performance of work, provision of services) free of charge as part of charitable activities in accordance with Law N 135-FZ is not subject to VAT, with the exception of excisable goods.

However, in order to apply the VAT exemption, certain requirements must be met:

1. The transfer of property within the framework of charity must be carried out strictly for the purposes named in paragraph 2 of Art. 2 of Law N 135-FZ (letters of the Ministry of Taxation of the Russian Federation of May 13, 2004 N 03-1-08 / 1191/15, the Federal Tax Service of the Russian Federation for the Moscow Region of September 14, 2006 N 21-22-I / 1096).

2. The organization has documents evidencing the legality of applying the benefits (letter of the Federal Tax Service of the Russian Federation for Moscow dated 02.08.2005 N 19-11 / 55153). According to the tax authorities, it is necessary to have:

• agreements (contracts) between the taxpayer and the recipient of charitable assistance for the gratuitous transfer of goods (performance of work, provision of services) as part of the provision of charitable activities;
• copies of documents confirming the registration by the recipient of charitable assistance of goods received free of charge (work performed, services rendered);
• acts and other documents indicating the intended use of goods (works, services) received (performed, rendered) in the framework of charitable activities.

At the same time, arbitration courts note that in order to confirm the fact of receiving funds as part of charitable assistance, a letter from the recipient with a request to transfer money for certain purposes and a payment order for the transfer of funds by the philanthropist is sufficient (Resolution of the Federal Antimonopoly Service of the North-Western District dated November 17, 2005 N A56- 11300/2005).

Thus, even if the gratuitous transfer of finished products to a non-profit organization is recognized as an object of taxation (for example, a transfer for non-statutory purposes), in the case of a charitable nature of such a transfer, the benefit provided for in paragraphs. 12 p. 3 art. 149 of the Tax Code of the Russian Federation, and there is no obligation to calculate VAT.

Here we consider it necessary to recall that according to paragraph 5 of Art. 149 of the Tax Code of the Russian Federation, taxpayers carrying out operations provided for in paragraph 3 of Art. 149 of the Tax Code of the Russian Federation, has the right to refuse such an exemption. The corresponding application for refusal must be submitted to the tax authority no later than the 1st day of the tax period from which the taxpayer intends to refuse the exemption or suspend its use. Refusal or suspension of exemption from taxation of transactions for a period of less than one year is not allowed.

In this case, an application for refusal of exemption under paragraphs. 12 p. 3 art. 149 of the Tax Code of the Russian Federation should be submitted to the tax authority no later than July 1, 2010. If the organization did not submit such an application to the tax authority within the specified time frame, then when providing charitable assistance in the III quarter of 2010 (in the event that the gratuitous transfer of finished products to a non-profit organization is recognized as an object of VAT taxation), the organization should keep in mind that it there is a need to maintain separate accounting for VAT (clause 4, article 149 of the Tax Code of the Russian Federation). We also recall that if the taxpayer does not have separate accounting, the amounts of VAT on purchased goods (works, services) are not deductible and are not accepted as expenses deductible when calculating corporate income tax (letter of the Ministry of Finance of Russia dated 03.08.2009 N 03- 07-07/60).

So, we believe that in the situation under consideration, it is not necessary to charge VAT on the cost of finished products transferred to the center of the art of physical culture of children with disabilities.

However, it should be borne in mind that when making transactions recognized as an object of taxation in accordance with Chapter 21 of the Tax Code of the Russian Federation, including those not subject to taxation (exempted from taxation) in accordance with Art. 149 of the Tax Code of the Russian Federation, the taxpayer is obliged to draw up an invoice (clause 1, clause 3, article 169 of the Tax Code of the Russian Federation). When goods (works, services) are sold, transactions for the sale of which are not subject to taxation (are exempt from taxation), primary accounting documents are drawn up and invoices are issued without allocation of the corresponding tax amounts. At the same time, a corresponding inscription is made on these documents or a stamp "Without tax (VAT)" is placed (clause 5, article 168 of the Tax Code of the Russian Federation).

It should also be taken into account that when transferring own products as part of the provision of charitable assistance, the question may arise of the need to restore VAT amounts previously accepted for deduction on goods (works, services) used to manufacture these products. You can study this problem in more detail by reading the answer of the legal consulting service to the question: A manufacturing organization (the general taxation regime, PBU 18/02 does not apply), provided charitable assistance to the temple with finished products (granite products) in the amount of 77,000 rubles. Materials for the manufacture of products are written off from the warehouse at an average actual cost, and therefore, in order to restore VAT, it is quite difficult to determine which supplies the specified material belongs to. How to reflect charitable assistance in accounting and tax accounting? Is it necessary to allocate VAT, how to restore it? What documents should be used for shipment?

income tax

In accordance with paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, the taxpayer reduces the income received by the amount of expenses incurred (with the exception of the expenses specified in Article 270 of the Tax Code of the Russian Federation). At the same time, these expenses must be economically justified, documented and aimed at generating income.

According to paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base for income tax, expenses in the form of the value of property transferred free of charge (works, services, property rights) and expenses associated with such a transfer are not taken into account.

Thus, the costs incurred by the organization as part of charitable activities, including in the form of the cost of transferred finished products, are not taken into account in expenses when calculating income tax.

A similar conclusion is presented in the letters of the Ministry of Finance of Russia dated 04.04.2007 N 03-03-06/4/40, the Federal Tax Service of the Russian Federation for Moscow dated 11/15/2005 N 20-12/85449, dated 06/30/2004 N 26-12/43525.

Accounting

With the gratuitous transfer of finished products, the organization does not increase the economic benefits, respectively, there is no income in accounting (clause 2 PBU 9/99 "Income of the organization"). Considering that expenses in the form of the cost of donated finished products are not related to the sale of goods (performance of work, provision of services), their cost is included in other expenses of the organization (clause 12 PBU 10/99). According to paragraph 18 of PBU 10/99, expenses are recognized in the reporting period in which they occurred, regardless of the time of actual payment of funds and other form of implementation (assuming the temporary certainty of the facts of economic activity).

In accordance with the Chart of Accounts for accounting of the financial and economic activities of organizations and instructions for its use, approved by order of the Ministry of Finance of Russia dated October 31, 2000 N 94n (hereinafter referred to as the Chart of Accounts), account 91 "Other income and expenses". Other expenses are recorded on the sub-account "Other expenses" of account 91.

At the same time, expenses in accounting are recognized regardless of how they are accepted for the purposes of calculating the taxable base (clause 19 of PBU 10/99). Thus, the value of the finished product transferred as part of charitable assistance is written off to the debit of account 91 "Other income and expenses", sub-account "Other expenses".

Debit 91, sub-account "Other expenses" Credit 43

6,000 rubles - the cost of dosimetric equipment donated as part of charitable assistance was included in other expenses.

Due to the fact that, unlike accounting, in tax accounting the cost of finished products transferred as part of charitable activities is not taken into account in expenses, in accounting there are permanent differences that form permanent tax liabilities (clauses 4 and 7 of PBU 18/02 "Accounting for income tax calculations"):

Debit 99 Credit 68

1200 rubles - a permanent tax liability is reflected (6000 rubles x the income tax rate (20%)).

Lazukova Ekaterina,
Melnikova Elena,
service experts
Legal consulting GARANT

Bibliography:

1. Civil Code of the Russian Federation.
2. Tax Code of the Russian Federation.
3. Federal Law of the Russian Federation of August 11, 1995 N 135-FZ "On charitable activities and charitable organizations".
4. Federal Law No. 7-FZ of January 12, 1996 "On non-commercial organizations".