The contract of donation between legal entities
In the work "in-house" lawyer groups, quite often the situation arises when you need to transfer some assets from one structure to another holding. In this case, the user requests to complete the exchange of a contract of donation, believing this method is the most simple from the point of view of legal content.
When this issue gets on the analysis of the lawyer, his first reaction – donation between the commercial organisations is forbidden, it is necessary to transfer the property for a fee. However, not for all situations, such a "categorical" interpretation is correct.
This position was expressed in 2012 the Supreme Arbitration court in case No. N A28-5775/2011-223/12. The court noted that the provisions of the Civil law, prohibiting the donation between the commercial organisations primarily focus on protecting the interest of the participants of the legal entity — donor that is to property owned by that legal entity, alienated for equivalent consideration. In the case where assets are transferred between the parent company and the subsidiary, the interests of participants are not infringed, additionally provided right of redemption of shares, acquisition of part of the share capital, the approval of related party transactions.
The contract of donation suggests a lack of paid consideration, at the same time, many lawyers forget that the characteristic of the current can be defined not only in material terms, but equivalent to perform a reciprocal obligation. Thus, if the Agreement provides for a reciprocal transfer of property (rights) or reciprocal obligation – the contract is not considered a donation. This position was advanced by the Supreme Arbitration court in 2002, in case No. 9912/01. However, the lawyer need to understand that consideration must be equivalent to the transferred thing, otherwise there is the risk of declaring such transaction void because of its Intrusive nature.
Very often used in the practice of commercial organizations scheme with the forgiveness of debt carries with it certain risks, one of which is the risk of invalidation of such forgiveness – giving. The cornerstone of such practices is an Informational letter of the Presidium of the RF of 21.12.2005 No. 104. Lawyer facing such a situation it is essential to understand the boundaries between gift and forgiveness of debt, and the answer to this question is already stated above. The Supreme Arbitration court explains that the lack of intention of creditor to give the debtor may indicate, in particular, the relationship between forgiveness of debt and the receipt by lender of property benefit in any obligation between the same persons. Thus, the main feature of the donation and debt forgiveness is called "material benefit". This property can be expressed in different legal structures, for example — the recovery of amounts owed at Unforgiven without going to court, or agreed upon a long commercial cooperation.
Therefore, the question regarding the possible receipt of the "economic benefit" depends entirely on the concerted action of employees of organizations formalizing the "forgiveness" of debt.