On 14 June 2013 Presidium of Supreme Commercial Court of the Russian Federation (hereinafter “SCC RF”) published on its official web site Ruling of Presidium SCC RF of 04 December 2012 on court case No. 8989/12 (hereinafter “Ruling”). Presidium sets forth in the Ruling that intra-group transactions on asset transfer without consideration shall not be qualified as gift and thus limitation related to gifts between commercial organizations (subcl. 4 cl. 1 art. 575 of the Civil Code) is not applied to such transactions.
Presidium SCC RF noted in the Ruling that gratuitousness is not the only characteristic of gift agreement. For attributing transaction to gift its content should directly imply donator’s intention to transfer asset as a gift. Presidium SCC RF also set forth that absence of direct consideration is a distinctive feature to relations between mother and subsidiary companies, together representing a single business entity. Such transactions can be done for the purposes of reallocation of assets within group of entities taking into account common goals of economic activity of the group.
Presidium SCC RF in its Ruling also noted that the reason for acknowledging such transactions invalid in court may be defect of form or other grounds. For example in the case under review Presidium SCC RF canceled decisions of lower courts in relation of qualifying transaction as a gift however confirmed its invalidity under provisions of art. 550 of the Civil Code of Russia due to violation of written form of the agreement.
It should be noted however, that the Ruling does not stipulate for possibility of its extended interpretation and shall not be regarded as “guidance” for lower courts.