DISTRIBUTION
OF
OBJECTS WITH A RELIGIOUS PURPOSE: DONATION OR COMMERCE?
Patriarkhiia.ru,
23
January 2018
An
article by
the director of the Legal Service of the Moscow patriarchate,
Hegumina Ksenia,
and an attorney for the synodal Department for Relations of
Church with Society
and News Media, A.A. Svetlichny, was published in the first
edition of the
magazine "Parish" for 2018.
This
article was
aimed at calling attention to a rather important topic that
religious
organizations face in daily life and which has been incorrectly
covered by a
number of writers, including O.M. Shakov, who either mistakenly
or
intentionally has mixed up concepts.
The
issue is the
distribution by religious organizations of items that have a
religious purpose.
By article 17 of the federal law "On freedom of conscience and
religious
associations," religious organizations have the right to
distribute items
that have a religious purpose. This activity should not be
equated with
entrepreneurial or other activity producing income, including
commercial
activity. Entrepreneurial activity, according to law, is
intended to produce
income, while the distribution of items with a religious purpose
is conducted
for the aims of joint confession and dissemination of the
Orthodox faith and it
does not pursue goals of systematic production of income.
Proceeds from this
activity are not subject to Value Added Tax and income tax.
According
to the
preamble to the law "On protection of consumers' rights," a
seller is
an organization, regardless of its legal organizational form,
selling wares to
consumers on the basis of a commercial agreement. In accordance
with article
492 of the Civil Code of the RF, a seller who conducts
commercial activity on
the basis of an agreement for retail commerce undertakes to
deliver to a buyer
wares intended for personal, familial, domestic, or other use
that is not
associated with entrepreneurial activity.
We
emphasize that
proceeds from the distribution of objects with a religious
purpose are entered
into accounting documents as donations from citizens. In the employment register of a religious
organizations
there is no position of salesman, although there is a position
of collector of
donations.
The
aforesaid is
confirmed by positive judicial practice. Thus, in 2012, the
Society for the
Protection of Consumers' Rights tried to show in a court
proceeding that
religious organizations that distribute objects with a religious
purpose
actually are engaged in the sale of goods. Such a conclusion was
made by the
society on the basis of a mistaken interpretation of the norms
of the Tax Code
of the RF, which preclude, in the opinion of the society, the
possibility of distribution
of goods gratis. However the court did not share the position of
the plaintiff
because neither the Tax Code of the RF nor any other normative
acts forbid the
free distribution of objects that have religious purpose. In
addition, the Tax
Code of the RF understands as a sale not only paid but also free
of charge
transactions, and in itself the terminology of the Tax Code of
the RF cannot
restrict the freedom of contract that presupposes the right of a
religious
organization to conclude both agreements for sale and agreements
for donation
of objects that have a religious purpose. The society also did
not succeed in
citing the "well known circumstances," to wit the commonly known
fact
of "trade" in the temple.
Thus,
the
position of O.M. Shakhov and other writers, according to which
religious
organizations are required to conclude a commercial agreement in
the sale of
objects that have a religious purpose and the distribution of
objects with a
religious purposes actually substitutes for commerce, is
unsubstantiated. (tr.
by PDS, posted 26 January 2018)
Editorial disclaimer: RRN does
not intend to certify the accuracy of information
presented in articles. RRN simply intends to certify the
accuracy of the English translation of the contents of the
articles as they appeared in news media of countries of
the former USSR.
If material is quoted, please give credit to the
publication from which it came. It is not necessary to credit
this Web page. If material is transmitted electronically, please
include reference to the URL,
http://www.stetson.edu/~psteeves/relnews/.