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Publication date: 26.04.2024
active and purposeful military lawyer with more than 4 years of experience
Non-targeted charitable financial assistance from a non-profit organization: clarification of DPS
Does a non-profit organization have the right to provide non-targeted charitable material assistance to its members who pay contributions for its financing, but are not its full-time employees, and who were mobilized to the Armed Forces of Ukraine?
COMMENT
One of the mandatory conditions for the organization to be in non-profit status is the prohibition of distribution of income (profits) or part of them among the founders (participants), members of such an organization, employees (except for payment of their labor, calculation of a single social contribution), members of management bodies and other persons persons connected with them and using their income (profits) exclusively for financing expenses for the maintenance of such a non-profit organization, realization of the purpose (goals, tasks) and directions of activity determined by its founding documents.
At the same time, during the period of the legal regime of martial law, a state of emergency is not considered a violation of the requirements of paragraph 133.4 of Article 133 of the Tax Code of Ukraine (hereinafter referred to as the Tax Code of Ukraine) on the provision by non-profit organizations of charitable assistance to natural persons who are not founders, participants of such organizations or persons related to them and who:
• live (lived) on the territory of settlements where hostilities are (were) taking place;
• and/or were forced to leave their place of residence in connection with hostilities in such settlements;
• and, in particular, taken into account in accordance with the procedure established by law in the structural subdivisions for social protection of the population of district, district in the city of Kyiv state administrations, executive bodies of city, district in cities (if formed) councils.
Thus, during the period of the legal regime of martial law, state of emergency, non-profit organizations will be able to provide charitable assistance at the expense of their incomes only to outsiders without the threat of losing their non-profit status.
! Therefore, in the event that a non-profit organization makes payments in the form of non-targeted charitable material assistance to some of its members, in particular, those mobilized into the ranks of the Armed Forces of Ukraine, conducting such operations will lead to the distribution of the received income in favor of the members of such an organization and, accordingly, to the violation of the right of residence of such organizations in the Register of non-profit institutions and organizations.
In addition, taking into account the provisions of clause 63 of subsection 4 of chapter XX of the Civil Code, for the period of the legal regime of martial law, a state of emergency, among the list of possible recipients of voluntary financial assistance, the provision of which by a non-profit organization will not lead to a violation of the requirements established by clause 133.4 of Article 133 of the Civil Code, such natural persons as military personnel are not separately defined.
On the other hand, for the period of the legal regime of martial law, a state of emergency is not a reason for excluding a non-profit organization from the Register of non-profit institutions and organizations, the conduct by such an organization of operations on the voluntary transfer of funds for the needs of state defense, in particular, directly to the Armed Forces of Ukraine, which is a military formation, on which, in accordance with the Constitution of Ukraine, is entrusted with the defense of Ukraine, the protection of its sovereignty, territorial integrity and inviolability, in accordance with the first part of Article 1 of the Law of Ukraine dated December 6, 1991 No. 1934-XII "On the Armed Forces of Ukraine" (as amended), another created in accordance with the laws of Ukraine to military formations, their units, military units, units.
