Fund management. Creation of a charitable foundation Name of the highest collegial body of the foundation

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 bargaining 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 for 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 a 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 presence 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 the conclusion of a fixed-term employment contract in accordance with this Code or other federal law;

Terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

Working hours and rest hours (if for this employee it differs from the general rules in force for the given 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.

By 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 fund management bodies, 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 of the organizational structure of the 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 their meetings board of trustees has the right to consider any issues related to the foundation's activities within its competence.

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

Violations found and others decisions taken the board of trustees notifies the board of the foundation and the person performing the functions of the sole executive body.

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 demand from officials fund for providing 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- not having a membership commercial organization operating on the basis of voluntary property and other contributions. The Fund assumes exclusively socially useful activities, namely: charitable, educational, cultural and educational, social and other similar types specified in 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. Everything material values donated by donors is solely the property of the Foundation, but not of 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 obligatory 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 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.

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 others.

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);
proceeds from legally permitted entrepreneurial activity;
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 monetary form must be used for charitable purposes within a year from the date of receipt of this donation by the Foundation.

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 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 required to publish reports annually on the use of its property.

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

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 necessary changes the purposes of the Foundation cannot be produced;
In case of deviation of the Fund in its activities from the purposes 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.

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 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-Commercial 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 a key moment in all further activities of the fund. Most foundations would like to recommend a simplified taxation system. And according to our observations, most of the funds have chosen this very 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 understandable, 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 rule of article 16 Federal Law"O 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 the 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 contract 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. Civil Code RF 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 posts 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. obligatory writing form contract. The agreement 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 the donation amount, 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 the 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 aforementioned 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?

V public offer, which, indeed, few people read that 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 economic initiatives of the foundation

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

- At some stage of its work, the fund 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 the organization money for the so-called minimum 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?

- It's 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 have more than 25% of other legal entities, cannot apply the simplified taxation system. That's why general recommendation such: if the fund's asset is reliable enough and committed to each other, then you can create such a commercial organization separately, so that its founders are just individuals - citizens of Russia.

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, the tax legislation perceives this operation as an operation to sell 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, that 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 minutes 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 gratuitous 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) to publish material about it free of charge, that is, he himself 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 concluded between the media and the fund, such a receipt of a free service from the media does not meet the requirements of the norm. Tax Code RF 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 have any risks. For example: a transfer has been made for the fund from 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 is used by a charitable foundation in its 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, in the text of the will itself, write down 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. 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 foundation's right to sell this apartment and send money to statutory activities.

- Are there any nuances of the fund's work that are not spelled out official rules, and 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 are worked out 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 made 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 specific program... And in this case general rule such: what is received for certain 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?

- Contact everyone natural person who donated money to the family is, in principle, impossible under any circumstances, and it is also impossible to find out their feedback. 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 management medical institution, on the basis of which the fund operates, this fund makes a request to the administration of a 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, this can be done, 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 assess the Russian Law on Charity? Does it need additions, changes?

— This law is wonderful, it was written very good people over 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, live charitable organizations it does not interfere. 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 of Economic Development of Russia has spent some effort to educate non-profit organizations... 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.

Fund: concept, features of the organizational form

A foundation in Russia is recognized as a structure created to implement socially significant goals in the field of charity, culture and education that do not contradict the law. The work of foundations, depending on the field of activity, is regulated by industry legislation, for example - 135-FZ "On charitable activities and charitable organizations."

Legal position, organizational structure, the management bodies of the funds are described within the first subparagraph (Articles 123.17-123.20) §7 "Non-profit unitary organizations" of Chapter 4 of the Civil Code.

The sign “non-commercial” implies that the fund does not have a legal basis for the implementation of activities related to the extraction of profits. The legislator made some allowances in relation to non-profit structures, in some cases allowing them to provide paid services or carry out activities related to the receipt of income, subsequently directed to the implementation of statutory goals. Ban for foundations commercial activities is absolute.

The sign “unitary” should be considered in the context of Art. 65.1 of the Civil Code, which also applies to non-profit structures. Corporate organizations operate on a membership basis. In other words, their founders are automatically recognized as members and form governing bodies. The founders of unitary organizations (including foundations) do not acquire membership in the structures created by them, they are not included in the number of governing bodies.

This is of key importance for determining the structure of the bodies of the foundation:

First, it is necessary to ensure that the founders have control over donations, which are the main source of the foundation's income, and the ability to effectively control the spending of funds. The legislator resolved this issue by providing for such a supervisory body for foundations as a board of trustees.
Secondly, it is necessary to prevent arbitrariness, arbitrariness and various kinds of abuse by managers. Due to the non-commercial use of the fund's funds, it is very difficult to control the effectiveness of investments. The problem was resolved by establishing mandatory collegiality of the highest management bodies of the fund. As planned by the legislator, members of collegial bodies control each other.

The supreme collegial body of the foundation, issues of its exclusive competence

The legislator did not give a name to the supreme governing body of the fund, leaving this issue to the discretion of the founders.

The most widespread in law enforcement practice were such names as "meeting" and "general meeting". The key requirement for this body is collegiality. It is reflected directly in Art. 123.17, 123.19 CC.

The general meeting is often a large and "cumbersome" body that:

meets once for the period specified in the charter (for example, once every six months);
convened as needed.

The legislator applies the concept of "exclusive competence". The scope of powers that the supreme collegial body possesses by virtue of Article 123.19 of the Civil Code can only be expanded by the charter.

The general meeting has status powers. First of all, it establishes the priority areas of the fund's activities and the vectors for spending its funds. The latter must comply with the objectives of the foundation set out in the charter. If necessary, the meeting makes amendments to the charter or adopts a new version of the document.
The law gives the highest collegial body the power to determine the sources of the fund's income. It seems that the fund can only implement such functions conditionally. The fact is that the members of the meeting are hired managers. They are not the founders of the foundation or its financial donors. Of course, they are not entitled to oblige anyone to donate funds and / or property to the fund. At the same time, the foundation has no reason to refuse to accept donations from any persons interested in its activities. At the same time, the general meeting initiates the popularization of the fund's activities, fundraising, etc.
The supreme collegial body forms all other governing bodies, determines them personnel... He, if necessary, terminates the activities of officials of such bodies ahead of schedule.
The general meeting approves the annual plans and activity reports drawn up on the basis of accounting and financial integrity. He also gives consent to the executive body for major civil transactions.
The collegial body is not entitled to initiate the creation or participation in operating business entities. However, this authority can be attributed to the competence of other bodies. The meeting makes decisions on the establishment of branches and territorial representations of the foundation.

The executive body of the fund, its functions and competence

Organizational support for the current activities of the fund falls on executive agency... The legislator does not impose any requirements on the composition of the executive bodies, and also does not establish its name.

Based on the instructions of the Civil Code and law enforcement practice, the following can be stated:

The executive body of the foundation is collegial and individual.
There is a possibility of combining: CEO / chairman + board. Then significant issues are subordinate to the collegial, insignificant - to the sole executive body.
Within the collegial executive body of large funds, departments and sectors can function.

As a general rule, the executive body of the foundation is elected by its highest collegial body. However, the relevant legislation on funds certain types, as well as the charter of the foundation, this authority can be attributed to the prerogatives of the founders.

The competence of the executive body / bodies of the fund includes the resolution of all issues of its functioning and activities, except for those referred to the exclusive competence general meeting or another higher collegial body.

Within clause 3 of Art. 123.19 of the Civil Code, the legislator refers to the possibility of imposing an obligation on a member of the executive body to compensate for losses caused to the fund by his illegal actions / inaction, improper performance of official duties, etc.

The board of trustees of the foundation is a control and supervisory body, the need for which is due to the unitarity of the foundation and the absence of membership relations within it.

The founders and financial donors of the fund are not part of its governing bodies, therefore, they can only indirectly control and influence the spending of funds:

electing the executive body (if provided by the charter);
participating in the work of the board of trustees.

Members of the board of trustees are usually its founders and benefactors, whose donations form the basis financial activities fund.

To ensure proper transparency of activities and improve the image of the foundation (contributes to fundraising), representatives of the public who are well-known in culture and art are often invited to the board of trustees. This is especially true for foundations with a single founder.