A commentary by BRACE lawyer Anna Ivanova to the Pharmaceutical Herald magazine on the issue of legal regulation of donations from pharmaceutical companies has been published.
Many pharmaceutical companies are involved in charity work, including making donations. According to the law, a donation is something that should be used for socially useful purposes. However, the legislator has not defined this concept. What to do in such a situation and how to correctly draw up an appropriate agreement, Pharmaceutical Herald magazine was told by Anna Ivanova, an associate at BRACE Law Firm.
Donations can be made to citizens, medical, educational, charitable and scientific organizations, foundations, museums and other cultural institutions, public and religious organizations, social service organizations and other non-profit organizations.
When transferring property to a citizen, a pharmaceutical company should indicate that it must be used by the recipient for a specific purpose. The legislation does not specify what this purpose may be. We believe that, for example, when donating medicines, it will be necessary to indicate: for the treatment of a specific disease of a specific patient. In this case, it is advisable to obtain information about the diagnosis and purpose of the corresponding medicine from the recipient. If the conditionality is not specified, the donation to the citizen will be considered a gift. As for legal entities, the donated property is used by the donee in accordance with the purpose of the property, without the mandatory indication of “use for a specific purpose”. As noted by the Federal Tax Service of Russia, “in order to recognize the funds and (or) other property received as targeted receipts, it is necessary that the said receipts are made for the maintenance of non-profit organizations and their statutory non-profit activities free of charge. The use of donations in commercial activities is not consistent with the provisions of Article 582 of the Civil Code of the Russian Federation”. The law allows you to demand the cancellation of a donation only if this property is not used for its intended purpose. Accordingly, the pharmaceutical company will have to prove this. And if this appointment is not secured by a donation agreement, it will be problematic to return your property. But the recipient has the right to refuse the gift at any time before it is transferred to him, without any explanation. In this case, the donation agreement is considered terminated. If the agreement is concluded in writing, the refusal of the gift must also be made in writing.
The recipient has the right to refuse the donation at any time before it is transferred to him, without any explanation. In this case, the donation agreement is considered terminated.
A donation to a hospital should be made directly to the medical organization, and not to its medical workers or director. This is confirmed by the explanations of the Ministry of Health of the Ulyanovsk Region: “A medical organization, as a legal entity, can receive, for example, a batch of drugs (with certificates and a shelf life sufficient for further dispensing) as a donation free of charge, if this will contribute to the achievement of the statutory activities of the medical organization, and there is no corrupt interest of the administration and employees of the medical organization”. Donations of medicines and medical products are quite common: it is important to pay attention to their recipient. It must be a non-profit organization. The legislation does not prohibit donations to citizens unless they are medical, pharmaceutical workers or heads of medical organizations or pharmacies.
A donation to a hospital should be made directly to the medical organization, and not to its medical workers or manager.
Particular attention should be paid to compliance with tax legislation. As a general rule, a legal entity accepting a donation must keep separate records of all transactions involving the use of donated property.
More detailed information about the article and commentary can be found on the website of the publication: https://pharmvestnik.ru/articles/Bezvozmezdno-to-est-darom-Kak-pravilno-sostavit-dogovor-o-pojertvovanii-ot-farmkompanii.html, and also here.
