Charitable foundation management. Charitable foundation. The executive body of the fund, its functions and competence

Hello Oleg!

In accordance with civil law, a foundation, including a charitable foundation, is a non-profit organization. In the fund at equity capital is not formed . Property, transferred to the foundation by its founders (founder), is the property of the foundation. Founders are not liable for obligations
founders.

The charter provides
the presence of the highest collegial body of the foundation, which has its own competence .

The supreme collegial body of the foundation elects the sole executive
body of the foundation (chairman, general director etc.) and can
appoint a collegial executive body of the foundation (board) or another
collegial body of the foundation, if by law or other legal act

So the structure of the bodies of the fund is determined by its charter.

Article 7. Foundations
1. For the purposes of this Federal Law, the fund is
established by citizens and (or) legal entities based
voluntary property contributions and pursuing social,
charitable, cultural, educational or other public
useful goals.
Property,
transferred to the foundation by its founders (founder), is
the property of the foundation. Founders are not liable for obligations
the fund created by them, and the fund is not responsible for the obligations of its
founders.

2.
The foundation uses the property for the purposes determined by the charter of the foundation. Fund
have the right to engage in entrepreneurial activity corresponding
these goals and necessary for the achievement of socially useful goals, for the sake of
which the fund is created. To implement entrepreneurial activity
foundations have the right to create economic companies or participate in them.
The foundation is obliged to publish annually reports on the use of its property.
3.
The board of trustees of the foundation is the body of the foundation and oversees
for the activities of the foundation, decisions by other bodies of the foundation and
ensuring their execution, using the funds of the fund, observing
fund of legislation.
The Board of Trustees of the Foundation operates on a voluntary basis.
The procedure for the formation and activities of the board of trustees of the foundation is determined by the charter of the foundation, approved by its founders.
4. Features of the creation and operation of funds certain types and their management may be established by federal laws on such funds.

Article 123.19. Fund management
1. Unless otherwise provided by law or other legal act, to the exclusive competence
the highest collegial body of the foundation relate:

determination of priority directions of the fund's activities, principles of formation and use of its property;
formation of other bodies of the foundation and early termination of their powers;
approval of annual reports and annual accounting (financial) statements of the fund;
making decisions on the creation of business entities by the foundation and (or) on the participation of the foundation in them, except for cases when the charter of the foundation assigns decision-making on these issues to the competence of other collegial bodies of the foundation;
(as amended by Federal Law dated 08.03.2015 N 42-FZ)
(see text in previous edition)
making decisions on the establishment of branches and (or) on the opening of representative offices of the fund;
changing the charter of the foundation, if this possibility is provided for by the charter;
approval of transactions carried out by the fund in cases stipulated by law.
Decisions on other issues may be referred to the exclusive competence of the highest collegial body of the foundation by law or by the charter of the foundation.
2. The supreme collegial body of the foundation elects the sole executive body of the foundation (chairman, general director, etc.) and may appoint a collegial executive body of the foundation (board) or another collegial body of the foundation, if by law or other legal act, these powers are not attributed to the competence the founder of the foundation.
(as amended by Federal Law dated 08.03.2015 N 42-FZ)
(see text in previous edition)
The competence of the sole executive and (or) collegial bodies of the foundation includes the solution of issues that are not within the exclusive competence of the highest collegial body of the foundation.
(as amended by Federal Law dated 08.03.2015 N 42-FZ)
(see text in previous edition)
3. Persons authorized to act on behalf of the foundation are obliged, at the request of the members of its highest collegial body, acting in the interests of the foundation, in accordance with Article 53.1 of this Code, to compensate the losses caused by them to the foundation.
4. The board of trustees of the foundation is the body of the foundation and oversees the activities of the foundation, the adoption of decisions by other bodies of the foundation and ensuring their implementation, the use of the foundation's resources, and the foundation's observance of legislation. The Board of Trustees of the Foundation operates on a voluntary basis.

Are there any rules in this? Which of us will be considered to be in control of the Foundation?
Oleg

The person who will be determined by the highest collegial body.

If it is necessary, after registration, someone should be included or excluded from the Fund, what is the procedure?
Oleg

It cannot be excluded, since the foundation recognizes
non-membership not commercial organization,

Chat

Free assessment of your situation

lawyer, St. Petersburg

Chat

Charter of a charitable backgroundCharter of a charitable backgroundyes (org ~ .rtf yes (org ~ .rtf

0 0

received
fee 27%

Hello,
Oleg!

Everything is spelled out
in the norms of the Civil Code of the Russian Federation and the Fed. of the Law "On NCOs":

Article 123.17
Of the Civil Code of the Russian Federation - for the purposes of this Code, a fund is recognized as a unitary non-profit
organization, non-membership established by citizens and (or) legal
persons on the basis of voluntary property contributions and pursuing
charitable, cultural, educational or other social, socially useful purposes (i.e. members are not included or excluded, citizens simply make contributions, and the number of such citizens is not limited).

The charter of the foundation must contain information about
the name of the fund, including the word "fund", its location,
the subject and purposes of its activities, about the bodies of the foundation, including the highest
a collegial body and a board of trustees overseeing
the activities of the foundation, the procedure for the appointment of officials of the foundation and their release
from the performance of duties, the fate of the fund's property in the event of its liquidation.

Article 123.18
Civil Code of the Russian Federation - The property transferred to the foundation by its founders (founder) is
the property of the foundation. The founders of the foundation have no property rights in relation to
the fund created by them and are not responsible for its obligations, and the fund is not responsible for
obligations of its founders. (i.e. there is no authorized capital, it will not be possible to divide it in any way)

The Foundation uses the property for the purposes,
defined in its charter.

Article 123.19
Civil Code of the Russian Federation - unless otherwise provided by law or other legal act, to
the exclusive competence of the highest collegial body of the foundation includes:

definition
priority areas of the foundation's activities, principles of education and
use of his property;

education
other bodies of the foundation and early termination of their powers;

statement
annual reports and annual accounting (financial) statements of the fund;

Adoption
decisions on the establishment of business entities by the fund and (or) on the participation of the fund in them,
with the exception of cases when the charter of the fund makes decisions on the specified
issues referred to the competence of other collegial bodies of the foundation;

Adoption
decisions on the establishment of branches and (or) on the opening of representative offices of the fund;

change
the charter of the foundation, if this possibility is provided for by the charter;

OK
transactions carried out by the fund in cases provided for by law.

The law
or the charter of the foundation to the exclusive competence of the highest collegial body
fund can be attributed to making decisions on other issues.

The supreme collegial body of the foundation elects
sole executive body of the fund (chairman, CEO and
etc.) and may appoint a collegial executive body of the foundation (board)
or another collegial body of the foundation, if by law or other legal act
these powers are not attributed to the competence of the founder of the foundation.

TO
competence of the sole executive and (or) collegial bodies of the foundation
concerns the solution of issues that are not within the exclusive competence of the highest
collegial body of the foundation.

Persons authorized to act on behalf of the foundation
are obliged at the request of the members of its highest collegial body acting in
the interests of the foundation, in accordance with article 53.1
of this Code to reimburse the losses caused by them to the fund.

Trustee
the council of the foundation is the body of the foundation and oversees the activities
the fund, by making decisions by other bodies of the fund and ensuring their implementation,
use of the fund's resources, the fund's compliance with legislation.
The Board of Trustees of the Foundation carries out its activities in public
beginnings.

Article 123.20
Civil Code of the Russian Federation - The Fund can be liquidated only on the basis of a decision
a court accepted at the request of interested parties, if:

1)
the property of the fund is not enough to fulfill its goals and the likelihood
obtaining the necessary property is unrealistic;

2) goals
the fund cannot be achieved, and the necessary changes to the goals of the fund cannot
be produced;

3) fund in
deviates from the goals stipulated by the charter;

4) in
in other cases provided by law.

3. In
in the event of liquidation of the fund, its property remaining after satisfaction
claims of creditors, is directed to the purposes specified in the charter of the fund, for
except in cases where the law provides for the return of such property
to the founders of the fund.

received
fee 46%

Hello!

The founders of the fund in accordance with paragraph 3 of Art. 48 and pp. 3 and 4 Art. 213 of the Civil Code of the Russian Federation does not retain any rights to the property transferred by them into the ownership of the fund, including membership fees.

In accordance with the Law "On Non-Commercial Organizations", the fund has no authorized capital

Article 7. Foundations
[Law on Non-Profit Organizations] [Chapter II] [Article 7]

1. For the purposes of this Federal Law, a fund is recognized as a non-profit organization without membership, established by citizens and (or) legal entities on the basis of voluntary property contributions and pursuing social, charitable, cultural, educational or other socially useful purposes.
The property transferred to the foundation by its founders (founder) is the property of the foundation. The founders are not responsible for the obligations of the foundation they have created, and the foundation is not responsible for the obligations of its founders.

Article 26. Sources of formation of property of a non-profit organization
[Law on Non-Commercial Organizations] [Chapter IV] [Article 26]

1. The sources of the formation of the property of a non-profit organization in monetary and other forms are:
regular and one-time receipts from founders (participants, members);
voluntary property contributions and donations;
proceeds from the sale of goods, works, services;
dividends (income, interest) received on shares, bonds, other securities and deposits;
income received from the property of a non-profit organization;
other receipts not prohibited by law.
Laws may establish restrictions on the sources of income of certain types of non-profit organizations, and in terms of institutions, including certain types.
The sources of the formation of the property of a state corporation can be regular and (or) one-time receipts (contributions) from legal entities, for which the obligation to make these contributions is determined by federal law.
2. The procedure for regular receipts from founders (participants, members) is determined by the constituent documents of a non-profit organization.
3. The profit received by a non-profit organization is not subject to distribution among the participants (members) of the non-profit organization.
4. The provisions of this article apply to state and budgetary institutions taking into account the specifics established by this Federal Law for these types.

The fund is managed by the supreme governing body, which is formed in accordance with the Charter of the fund.

the federal law of August 11, 1995 N 135-FZ "On charitable activities and charitable organizations"

Article 10. The supreme governing body charitable organization

1. The supreme governing body of a charitable organization is its collegial body, formed in the manner prescribed by the charter of the charitable organization.
2. The competence of the supreme governing body of a charitable organization includes:
changing the charter of a charitable organization;
formation of executive bodies of a charitable organization, its control and audit bodies and early termination of their powers;
approval of charitable programs;
approval of the annual plan, budget of the charitable organization and its annual report;
making decisions on the creation of commercial and non-commercial organizations, on participation in such organizations, the opening of branches and representative offices;
making decisions on the reorganization and liquidation of a charitable organization (with the exception of a charitable foundation).
3. The members of the highest governing body of a charitable organization fulfill their duties in that body as volunteers. The supreme governing body of a charitable organization may include no more than one employee of its executive bodies (with or without the right of a casting vote).
4. Members of the supreme governing body of a charitable organization and officials of a charitable organization shall not be entitled to hold regular positions in the administration of commercial and non-profit organizations, the founder (participant) of which is this charitable organization.

Many of us have no idea how a charitable foundation works. We want to look at the average fund "in the context" - how donations "pass through" it, and what happens to the donors' money "inside the fund"? This is the reader's interest.

But the NGO employees themselves do not always competently organize the monetary side of their work. Otherwise, there would be no financial scandals within the sector itself.

So: any charitable foundation is, of course, not a commercial organization, but an economic one. And each fund should know how to properly arrange donations, how much tax to pay, how much to spend on maintaining the apparatus, how to arrange pro bono assistance, how to keep the books of your charity store.

Pavel Gamolsky, President of the Association "Club of Accountants and Auditors of Non-Profit Organizations" knows everything about NPOs as an economic structure. He explains how the foundation works and gives advice.

Pavel Gamolsky

Today we will find out how:

The Foundation as a Business Unit: From Birth to Death

- Pavel, the foundation was born. What should he do right away?

- After the fund has opened, it needs to choose a taxation system within 30 days from the date. This is key moment in all further activities of the foundation. Most foundations would like to recommend a simplified taxation system. And according to our observations, most of the funds have chosen just such a regime. Only 5 percent of foundations choose the general tax regime. Further - before the creation - you need to decide on such an important detail: will it be just a foundation or a charitable foundation? A charitable foundation has a number of advantages and a number of disadvantages. The disadvantages are that additional reporting will have to be submitted to the justice authorities; the reporting is clear, uncomplicated, telling about the fund's programs, which in fact only increases the transparency of the fund's work. The second limitation that appears for a charitable foundation is the norm of Article 16 of the Federal Law "On Charitable Activities and Charitable Organizations": charitable organizations are not entitled to use more than 20% of the funds spent by the organization for the year to pay administrative and managerial personnel.

- And the benefits are tax breaks?

- Yes, the charitable foundation has three tax breaks. The first and most important right is to provide tax-free charitable assistance to individuals as many times a year as possible. The second is the right of charitable foundations to establish scholarships and not to tax them on personal income. And the third point: only if a simplified taxation system is applied, charitable organizations have the right to pay insurance premiums for compulsory insurance at a reduced rate - not 30%, but only 20%. The norm is valid until the end of 2018, but may be extended.

- Do the funds have any other benefits?

- If a commercial organization received money from outsiders free of charge, it is immediately obliged to pay income tax - it will amount to general regime taxation 20%, simplified - 6%. And for non-profit organizations, the legislator made a significant exception, which exists in world practice in almost all countries. A list of gratuitous receipts has been approved, which, subject to their intended use, are not recognized as income of the organization for tax purposes. For the vast majority of foundations, the main source of income from this list is donations.

According to civil law, donation Is the donation of a thing or right for generally useful purposes. That is, we can donate money or material values. But you cannot donate work, you cannot donate a service, you cannot donate exemption from property obligations.

- Is it necessary to conclude a donation contract in this case?

- Under Article 574 of the Civil Code donation agreement movable property must be completed in writing if the donor is a legal entity, and the value of the gift exceeds 3000 rubles. And if the donor is a private person, then no matter what the amount is - a ruble, a million or a hundred million - the conclusion of an agreement is not necessary.

Formalization of relations with a donor-legal entity can be different. Or the agreement as a single document signed by both parties. The second way - the fund writes: “please donate five thousand rubles to us”, and the commercial donor organization writes in response: “we agree to donate five thousand rubles for such and such a purpose”. Provided that both documents are available, this is called an "exchange of letters".

- How is the offer agreement used by the funds?

- The third type of relationship is an offer agreement. The Civil Code of the Russian Federation in paragraph 2 of Article 432 says that an agreement can be concluded "by sending an offer (proposal to conclude an agreement) by one of the parties and its acceptance (acceptance of the proposal) by the other party."

Let's try to explain what has been said.

The foundation places on its website an offer to make a donation for a specific program or assistance to a specific person, or for the statutory activities and maintenance of the organization (in the latter case, the degree of trust in the organization is greater, and the degree of freedom to spend funds is also higher).

In turn, an individual, having familiarized himself with this offer (offer), agrees that he makes a donation precisely on these conditions.

Unfortunately, on the basis of a public offer, it is impossible to receive a donation from a legal entity. The fact is that for donations from legal entities in the amount of more than 3 thousand rubles. a written form of the contract is required. The contract is considered concluded if it reflects all the conditions that are binding by law. One of such conditions for a donation agreement (as a special case of a donation agreement) is subject of donation... If we are talking about money - the exact amount of donation, if about property - a list of this property with a description of generic characteristics.

If one of the essential conditions is not reflected in the agreement, then it is not considered concluded.

Although situations are different. Sometimes, when a big trouble happened in the country, it was necessary to urgently collect a large sum of money. Think of the floods in southern Russia four years ago. Then donated without a contract, everyone: both individuals and legal entities. In this situation, the inspection bodies turned a blind eye to this: mercy is higher than justice.

- How should the fund justify and show its business expenses?

- In non-charitable foundations, the legislator does not regulate the percentage of funds spent on the management apparatus and on program activities ... But for charitable foundations, the legislator does not limit such expenses, with the exception of the mentioned restrictions on salaries.

But if the fund in public reporting reports that it spent the lion's share of the funds raised on maintenance, the administrative authorities cannot make any claims to such a fund. But donors will react, of course, quite specifically. And in the interests of the fund, show all expenses as programmatic, and allocate administrative expenses separately in order to minimize their total amount.

But nevertheless, there is no escape from them. The office needs to be maintained: pay salaries to employees, buy office equipment, etc. How do you warn a potential donor about administrative costs?

In a public offer, which, indeed, few people read, which is wrong, it is advisable to write either a general phrase that does not affect the image of the fund, that the donor is notified that the fund will spend part of the donations received on administrative costs. Or - that the fund spends a certain percentage of the collected amounts on administrative expenses. World practice: from 10% to 20% for administrative purposes are necessary and reasonable expenses.

- And if the foundation “failed”, lost its donors, or failed to gather them around itself and its idea, what should the founders do?

— The Fund, as an organization that is intended by world practice and the Russian legislator to raise funds, is fraught with two initial drawbacks. The first danger: the impossibility of liquidation on its own initiative. It happens that the founders have lost interest in the fund for some reason: their own problems, lack of money, disappointment in everything and everyone, and so on. But the fund can only be liquidated by a court decision. And for more than 25 years of work in non-profit organizations, I know literally a dozen cases when the case was brought to an end and the fund was liquidated in full.

In the early 90s, the organization could be abandoned relatively painlessly and not be concerned with reporting. But now administrative bodies, bailiffs can come, impose a fine for failure to submit reports. For some, this may be a reason for a temporary restriction of travel abroad or for a temporary restriction of the validity of a driver's license.

The second drawback is the statutory audit. From the moment the foundation was born and registered, it has a lifelong obligation to undergo a statutory audit. Quite often, requests are received of this kind: our fund collects only 5,000 rubles a month (or a year) - what should we do with the audit? After all, the audit is carried out by commercial organizations, it is not free. So: if the founders of the fund are not sure that they will find money, including for an audit, there is no need to choose this organizational and legal form. Theoretically, funds can be collected in a different organizational and legal form, although this is not entirely beautiful. Regions often create public organization, and she likewise collects money from donors and spends it on good deeds. In principle, this is permissible.

Charity shop: discussing the fund's economic initiatives

- Many foundations have workshops, charity shops. How is such a production documented? economic activity?

- At some stage of its work, the foundation realizes that donations are not enough, and decides to carry out income-generating activities. This can be the placement of money in a deposit account, and the conclusion of an agreement with the bank that the bank pays money to the organization for the so-called irreducible balance of money in the current account. Or maybe production in workshops, the production of souvenirs, it can be charity shops, and other types of income-generating activities.

If employees or wards of the foundation begin to produce something, and then this something starts to be sold, this is already an active income-generating activity, for which income and expenses may arise. Our legislation is very vague about the procedures for how a non-profit organization can separate income and expenses for income-generating activities, and income and expenses for core statutory activities.

Therefore, starting from the moment when the workshop has already begun to bring stable income and, therefore, to bear stable costs, it is advisable to create a commercial organization, an ordinary LLC, and transfer all income-generating activities there. This will significantly reduce all tax and administrative risks of the non-profit organization.

Thrift stores are also more correct to create in the form of commercial organizations. And all the profits from this store can already be directed to the statutory activities of a charitable organization - for example, in the form of a donation.

- Should this commercial organization be a foundation structure or should it exist separately?

- This is a difficult question. The fact is that if the fund is the founder of this LLC, then such an LLC, like any organization, whose founders include more than 25% of other legal entities, cannot apply the simplified taxation system. Therefore, the general recommendation is this: if the fund's assets are sufficiently reliable and committed to each other, then such a commercial organization can be created separately, so that its founders are just individuals - Russian citizens.

This is approximately how the structure of many enterprises of the Old Believers operated. From the beginning to the middle of the 19th century, such a practice existed in Old Believer circles in Russia - factories and plants formally belonged to individuals, whose number was quite small, but at the same time there was a constant rotation of shareholders.

That is, as these individuals retired or ceased to show devotion to their religion, the community removed them from owning shares in the enterprise, but formally this was presented to the state as a sale of shares, but in reality the community was in charge of this organization. The proceeds from the de facto communal enterprises were transferred to the church.

- Is it legal for a charitable foundation to hold an auction?

— The true will of the person who purchased the item at the charity auction is the desire to help a non-profit organization, in fact it is a donation. But, despite this, tax legislation perceives this operation as an operation for the sale of tangible assets to an individual.

As a result, the organization must pay 6% from the sale amount on the simplified taxation system, and 18% VAT and 20% profit tax on the general regime, 38% in total. There will be no expenses for such an operation. After all, an item is put up for auction, which either has an extremely low cost of acquisition or manufacture, or is generally donated.

— Frequent question within the sector - can the fund put the collected funds on a deposit and live with interest? Or can only the endowment fund do it - and they are arranged somehow differently?

- If the organization has entered into an agreement with the bank that the bank pays it for the minimum balance on the current account, then the organization does not have any risks. No one can say that she diverted the donors' money. Upon actual receipt of income from the bank (and this amount is significantly lower than the interest on the deposit), tax is paid at a rate of 20% or 6%, depending on the tax regime.

The next point is the deposit. In order to put money on a deposit, it is very desirable to justify that it is this amount that is put on the deposit, for the period for which the contract is drawn up, the organization will not need due to charitable programs, due to the financial plan, due to the wishes of the donors ... And if the organization writes this in as much detail as possible in the protocol of its governing body, then everything is fine, the risks are reduced to the very minimum. And then the organization pays tax from the actually received interest in the usual manner, which we talked about above.

- Foundations use helppro bono from firms. Should this assistance be documented, and how?

- In 2011, in the Tax Code of the Russian Federation, a wording appeared that free services received for non-profit organizations are a type of targeted income, but only under one condition - subject to the concluded agreement.

For example. The foundation agreed with a certain media outlet (which is, as a rule, a commercial organization) on free publication of material about it, that is, it initiated such a publication, and it was not the media that requested an interview or an article about the foundation. In this case, if an agreement is not drawn up between the media and the fund, such a receipt free service from the media does not comply with the requirements of the Tax Code of the Russian Federation and is taxed.

However, if the person who provided this service free of charge did not formalize its provision in any way, then the fund does not face risks. For example: a translation has been made for the foundation from a foreign language into Russian, are there any traces of such a pro bono agreement? If not, then there are no risks. If the cafe provided the foundation for the event, but there are no traces that the cafe spent part of the time not serving paid visitors, but provided it to the foundation, then there is no violation. The risks in all these cases are not for companies, but for the fund, which receives the service free of charge without concluding an agreement.

- Is it possible to write a will in favor of the foundation?

- There is a widespread in the world, and more and more widespread in Russian practice, form of will in favor of the foundation. From the point of view of taxation, the state in 2002 declared that property received by will by a non-profit organization is recognized as earmarked income.

There are subtleties here. If the bequest property is used by a charitable foundation in own activities, there are no problems. But if this property is later sold, then it is advisable, during the life of the person who made the will, to write in the text of the will itself that he agrees to the subsequent sale of this property by a charitable organization. If this phrase is not there, then there is a risk of accusations of the fund in the misuse of such inheritance.

Let's say the foundation has received an apartment by bequest. And he sells it after some time for 5 million rubles. The tax authority may say that the bequest property was transferred to you for statutory activities, and you sold this apartment. And it will require paying tax, firstly, on the amount of the sale of the apartment, and secondly, in the amount of the so-called misuse, i.e. from the amount of the market value of the apartment on the date of acceptance for accounting. Therefore, in order to avoid this danger, you need to ask the author of the will to write down all the details in it, including the right of the foundation to sell this apartment and send money to statutory activities.

- Are there any nuances of the fund's work that are spelled out not by official rules, but by practice?

- I think this is the so-called targeted use of funds. Nobody knows what it is.

This is not written in any legislative or normative act, but there are four main points that have been developed by practice, life.

The first moment: all expenses should be made for the implementation of activities that comply with the organization's charter and legislation. That is, even if some expense is obvious from the point of view of logic and common sense, but does not comply with the charter, such an expense cannot be carried out by this fund. It will be inappropriate. Let's say an organization was created to support children, but there was a need to help an adult. With all the obviousness of the social usefulness of this action, the fund will not be able to do this.

The second point is that all expenses of the fund must be made in accordance with its own financial plan... This is a document that the administrative authorities are one of the first to check. You can detail it even up to a week, but it should be calculated for at least a year.

Third point. All expenses must be documented. If some expense is obvious, socially useful, but not confirmed by documents, there is a risk of accusations of misuse of funds.

And the last moment. All expenses should relate only to the main statutory activities of the organization. A very controversial and difficult question is how to start income-generating activities at the expense of the donations received.

What to do with the remainder?

- Many foundations have difficulties with the disposal of the "balances" - that part of the transferred money, which for one reason or another is no longer needed by a particular patient ...

- If money is received with the wording “for statutory activities” - such a wording covers all types of expenses. But often donors want to donate not to the organization in general, but to help a specific child, to help a specific program. And in this case, the general rule is this: what is received for specific purposes cannot be redistributed without changing the will of the donor ...

- What should NPOs do in this case? To distribute this money among other patients? Leave it to yourself? Leave it to the family?

- It is, in principle, impossible under any circumstances to contact each individual who donated money to the family, and to find out about them feedback also impossible. It is impossible to retroactively make a new public offer, since the old one was made before. Based on this experience, it is worth mentioning in the public offer that if it is impossible to use funds to help a particular family, the donor transfers the right to the fund to use these donations to help other people who find themselves in such a situation.

There is the experience of one charitable foundation that has been successfully operating in the capital for more than ten years and helps children with especially serious illnesses. Having close business cooperation with the management of the medical institution on the basis of which the fund operates, this fund makes a request to the administration of the medical institution.

The administration gives the fund photocopies of the first pages of medical records, where it is written that the child has died. Based on these documents, the foundation convenes the board, and it decides to redistribute funds that cannot be used to help a particular child to other children. Although this does not comply with the law - after all, the donor donated money to provide assistance only to a specific child.

It turns out that the only legal way out of this situation would be to return the money to this donor. Theoretically, it is possible to do this, since the details of the donors are stored in the money transfer systems. After all, there is an opportunity to get money back for unused air and railway tickets. But it's not easy.

Again, refunds are certainly not an option. The way out would be the initially stipulated right of the fund in an exceptional situation to change the purpose of the money to provide assistance to people who find themselves in the same situation.

Non-profit organizations and the law: how literate are our foundations

- How can a foundation prove its transparency?

- There are several forms of reporting, but all of them are for government agencies. But the report for users of reporting, for donors is published in the media and on their own sites. Here there are no forms, and the organization determines the level of detail of the details itself, proceeding from its understanding of what society should know, what donors should know. If an organization wants to schedule all its expenses, incl. administrative, with the maximum degree of detail, and this, of course, is her right, and she decides this issue herself.

- How do you rate Russian law about charity? Does it need additions, changes?

— This law is wonderful, it was written by very good people more than 20 years ago. In principle, this is a working law.

Another thing is that due to the cardinal change in all civil legislation, it is probably already outdated. But by and large, it does not interfere with living for charitable organizations. I think even if this law is revised, what will be proposed may be even worse. In general, this law has undergone only nine amendments in its 21 years of existence. This is a record low number!

- In your opinion, have NPOs become more literate today? financial matters? Or, on the contrary, have they started making more mistakes?

- The country, in principle, is becoming more literate. And the Ministry economic development Russia has spent some effort to educate non-profit organizations from all points of view. There are a lot of Internet resources, forums.

But about 10-15 percent of foundations - and more often these are small NPOs - continue to make them. And yet, the number of organizations that incorrectly draw up gratuitous receipts is significantly reduced.

Drawings by Dmitry Petrov.

Labor contract- an agreement between the employer (fund) and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations and this agreement, timely and in full pay the employee wages, and the employee undertakes to personally perform the job function defined by this agreement, to comply with the internal labor regulations in force at of this employer... The following conditions are mandatory for inclusion in an employment contract:

Place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, the place of work with an indication of the separate structural unit and its location;

Labor function (work according to the position in accordance with staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee). If, in accordance with this Code, other federal laws, the provision of compensation and benefits or the existence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements to them must comply with the names and requirements specified in qualification reference books approved in accordance with the procedure established by the Government of the Russian Federation;

The date of commencement of work, and in the case when a fixed-term employment contract is concluded - also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

Labor remuneration conditions (including the size tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments);

Working hours and rest hours (if for this employee it differs from general rules employed by this employer);

Compensation for hard work and work with harmful and (or) dangerous conditions labor, if the employee is hired in appropriate conditions, indicating the characteristics of the working conditions at the workplace;

Conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);

Condition on compulsory social insurance of the employee in accordance with this Code and other federal laws;

Other conditions in cases stipulated by labor legislation and other regulatory legal acts containing labor law norms.

An employment contract concluded with the person performing the functions of the sole executive body, as well as with the head of the collegial executive body of the fund, has its own characteristics:

May be urgent;

The test period cannot exceed six months;

It can be terminated at the personal request or by the decision of the foundation council.

2. The competence of the executive body is determined by the council of the foundation. The powers of the executive body are determined in the charter of the foundation, as well as in the regulations on the executive body of the foundation, adopted by the council of the foundation in accordance with the charter.

According to the general rule determined by the Federal Law of 12.10.1996 N 7-FZ "On Non-Commercial Organizations", the competence of the executive body includes the solution of all issues that do not constitute the exclusive competence of other management bodies of the fund, as defined by the charter of the fund.

A person performing the functions of the sole executive body is a person acting on behalf of the foundation without a power of attorney. It is this person who is authorized to represent the interests of the foundation in public authorities. For example, he signs applications for a license, about state registration, on registration of pension and insurance rules, rules internal control; acts on behalf of the fund when concluding pension agreements, agreements on compulsory pension insurance, agreements on the creation of a professional pension system, agreements with a specialized depository, management companies, etc. Other powers of this person include:

Formation organizational structure fund,

Staffing approval,

Conclusion employment contracts with employees of the fund,

Within the limits of its competence, the issuance of orders, orders, mandatory for all employees of the fund;

Ensuring the implementation of decisions of the foundation council;

Conducting civil transactions on behalf of the fund within its competence, etc.

Board of trustees

1. The commented law, as well as the Federal Law of 12.01.1996 N 7-FZ "On Non-Commercial Organizations", provides for the presence of a board of trustees and a supervisory body among the management bodies of the fund. The subject of supervision is the activities of the foundation, as well as the adoption by other bodies of the foundation of decisions and ensuring their implementation, the use of the foundation's resources, and the foundation's compliance with legislation.

At its meetings, the Board of Trustees has the right to consider any issues related to the activities of the foundation that are within its competence.

Decisions by the board of trustees are made by a majority vote.

The board of trustees shall notify the board of trustees of the foundation and the person performing the functions of the sole executive body about the revealed violations and about other decisions taken.

2. The competence of the board of trustees is determined by the board of the foundation. The powers of the board of trustees are determined in the charter of the foundation, as well as in the regulation on the board of trustees of the foundation, adopted by the council of the foundation in accordance with the charter.

The functions performed by the board of trustees include:

Monitoring compliance with the current legislation in the activities of the foundation and over the implementation of decisions of the foundation council;

Control over the observance of the interests of participants, depositors and insured persons;

Development of proposals for making additions and changes to the pension and insurance rules of the fund;

Checking the reliability of the reporting prepared by the fund;

Other functions determined by the charter of the foundation and the regulation on the board of trustees.

When exercising control functions, the board of trustees has the right to require the officials of the fund to provide information, documents and explanations. The Board of Trustees is authorized to inspect the activities of the foundation in order to identify violations.

3. The procedure for the formation of the board of trustees is determined by the charter of the foundation. The members of the Board of Trustees may be individuals who are fully qualified and capable. The commented law does not impose any restrictions on the combination of positions, and does not impose additional requirements on persons appointed to the board of trustees. Additional requirements may be established by the charter of the foundation. For example, a ban on the inclusion of members of the fund's executive body in the board of trustees.

Fund- a non-profit non-profit organization operating on the basis of voluntary property and other contributions. The foundation assumes exclusively publicly - useful activities, namely: charitable, educational, cultural and educational, social and other similar types specified in the constituent documents. However, in order to achieve the above types of activities, the Foundation can also engage in commercial activities.

The Foundation can be created by both an individual and a legal entity. Due to the fact that the Fund is a non-membership organization, its founders are not entitled to increase its membership after the registration of the Fund. All material values contributed by donors are exclusively the property of the Foundation, but not its founders. Accordingly, the Fund cannot be held liable for the obligations of its own founders and its founders are exempt from liability for the obligations of the Fund.

The obligations of the founders do not include mandatory participation in the activities of the Fund, however, their duty is to control the intended use of material assets received by the Fund. For this, it is necessary to create a Board of Trustees of the Fund, which can, by its decision (or by decision of the founders), even reorganize the Fund (without the possibility of transformation into other types of legal entities).

Individuals and (or) legal entities can act as founders of the Charitable Foundation. The minimum number of founders is one natural or legal person.

Public authorities and bodies local government as well as state and municipal unitary enterprises, state and municipal institutions cannot act as founders of the Charitable Foundation.

The supreme governing body of the Charitable Fund is its collegial body, formed in the manner prescribed by the Charter of the Charitable Fund.

A charitable foundation has the right to carry out entrepreneurial activity only to achieve the goals for which it was created, and corresponding to these goals.

To create material conditions for the implementation of charitable goals, the Charitable Foundation has the right to establish business entities. Participation of the Charitable Foundation in business companies together with other persons is not allowed.

The charitable foundation has the right to create branches and open representative offices in the territory Russian Federation and beyond.

The sources of the formation of the property of the Charitable Foundation may be:

contributions from the founders of the Foundation;
charitable donations, including those of a targeted nature (charitable grants), provided by citizens and legal entities in cash or in kind;
income from non-sale transactions, including income from securities;
proceeds from activities to attract resources (campaigns to attract philanthropists and volunteers, including the organization of entertainment, cultural, sports and other mass events, campaigns to collect charitable donations, lotteries and auctions in accordance with the legislation of the Russian Federation, sale of property and donations, received from benefactors, in accordance with their wishes);
income from legal business activities;
income from the activities of business entities established by a charitable organization;
work of volunteers (volunteers);
other sources not prohibited by law.

The fund is not entitled to use more than 20 percent for remuneration of administrative and managerial personnel financial resources spent by this organization for the financial year. This restriction does not apply to the remuneration of persons participating in the implementation of charitable programs.

Unless otherwise specified by the benefactor or the charitable program, at least 80 percent of the charitable donation in cash must be used for charitable purposes within a year from the date the Fund receives this donation.

To finance charitable programs (including expenses for their material, technical, organizational and other support, for the remuneration of persons participating in the implementation of charitable programs, and other expenses associated with the implementation of charitable programs), at least 80 percent of those received during the financial year must be used income from non-sale transactions, income from business entities established by a charitable organization and income from business activities permitted by law. When implementing long-term charitable programs, the funds received are used within the time frame established by these programs.

The charitable program includes an estimate of the expected income and planned expenses (including the remuneration of labor of persons participating in the implementation of the charitable program), sets the stages and terms of its implementation.

The charitable foundation is obliged to publish reports on the use of its property annually.

The decision to liquidate the Fund can only be made by a court upon the application of interested persons.

The fund can be liquidated:

If the property of the Fund is not sufficient for the implementation of its goals and the probability of obtaining the necessary property is unrealistic;
If the objectives of the Foundation cannot be achieved and the necessary changes to the objectives of the Foundation cannot be made;
In case of deviation of the Fund in its activities from the goals provided for by the Charter;
In other cases provided by law.

In the event of the liquidation of the Charitable Foundation, its property remaining after the satisfaction of creditors' claims is directed to the purposes specified in the Charter.