Budgetary organizations. Government agencies: examples

It is a non-profit organization. It can provide various types of government services. task. The activities of the institution are financed from the corresponding budget based on the estimate.

Non-profit organizations

According to Art. 116-123 of the Civil Code, the types of such associations differ according to:

1. Composition of participants.
2. Purposes of creation.
3. The method of forming their property.
4. Responsibility of participants for existing obligations.
5. Opportunities to conduct business activities.
6. The composition of the constituent documentation.
7. Responsibilities to publish reports on the use of property.

One of the forms of a non-profit organization can be an institution formed by the owner to perform socially useful tasks. It can be created by a legal entity or citizen, the Russian Federation, a region, or a Moscow region. On the territory of the country in last years private (non-state) educational institutions began to actively emerge preschool institutions. They are created by individuals and legal entities and partially compensate for the lack of the required number of municipal preschool educational institutions. Let us next consider what budgetary institutions are.

general characteristics

A territorial or federal state budgetary institution that does not have profit as the main goal of its work and does not distribute the funds received among participants. Such an organization can carry out commercial activities corresponding to the purpose for which it was created. A budgetary institution is formed without restrictions on the duration of its work, unless otherwise provided in the constituent documentation (charter).

Features of formation

A budgetary institution can be created by the Russian Federation, its constituent entity or Moscow Region. The founders are government bodies, regional executive structures or local government. A state budgetary institution cannot alienate or otherwise dispose of property that is assigned to it by the owner or acquired from funds allocated to it. The organization is financed in whole or in part by its owner.

Signs

A territorial (state) budgetary institution has a single owner. It can be:

In the first case, a federal budgetary institution is created. The purpose of forming an organization is to carry out socio-cultural, managerial or other socially useful non-commercial functions. A budgetary institution is responsible for its own obligations with the funds at its disposal. If the volume of sources is insufficient, subsidiary liability is imposed on the property owner. The charter serves as the founding document of the organization. The enterprise is obliged to publish reports on the use of the property entrusted to it every year. Main financial plan is an estimate of expenses and income.

conclusions

Based on the above characteristics, it can be noted that a budgetary institution:

1. Cannot be created by cooperatives, joint stock companies and other business entities.
2. Formed for the implementation of non-commercial purposes. However, the fact that the main activity is not carried out for the purpose of making a profit and distributing the funds received among the founders does not act as a prohibition on the provision of paid services. An organization can engage in entrepreneurship if it meets its goals.
3. The recipient of income from the provision of paid services must allocate funds, in agreement with the main manager, exclusively for the development and expansion of the activity for which it was created.
4. Possesses property formed from material assets entrusted to him by the owner, as well as acquired by the organization itself. The budgetary institution carrying out operational management uses and owns objects within the framework defined by law and in accordance with the purposes for which it was created. Unless otherwise specified in regulations, the organization disposes of property with the consent of the owner.
5. Before the start of the reporting year, it is required to draw up an estimate of expenses/income, and at the end of the period - a report on its implementation.

Features of financing

As mentioned above, funds to support activities come from the corresponding budget. It depends on the level at which the organization is created. For example, a municipal budgetary institution is financed from a local fund. However, there is one caveat to consider when considering this issue. The mere receipt of such funds does not indicate that the institution is budgetary. Financing from such funds is also provided for other organizations, including commercial ones. It is carried out in various forms. For example, this could be the purchase of products to meet state (territorial) needs, the provision of subsidies, subsidies, subventions and other things.

Requirements and control

Considered non-profit organizations provide a wide range of various socially useful services and perform functions that are not paid for by consumers, but are financed from appropriate funds on a non-repayable basis. According to such a scheme, for example, a state budgetary institution of healthcare, culture, sports, etc. operates. This model of activity, on the one hand, weakens control over the quality of the functions implemented by the organization, and on the other, over the efficiency of using the funds received. Prices for services are determined primarily directive method. This takes into account not only the actual amount of costs, but also the capabilities of the budget fund. Thus, financial condition organizations in question, settlements with creditors and debtors largely depend not so much on the quality and quantity of services, but on the completeness and timeliness of the allocation of funds. The income that a municipal budgetary institution receives from the sale of its services must be spent and distributed in accordance with legal requirements. This fact negatively affects the flexibility of economic management and the ability to carry out operational maneuvering in rapidly changing economic conditions. It is necessary to take into account that only with a combination of all the above characteristics can we say that the organization is a budgetary institution.

Classification

Among the main types of budgetary organizations, the following should be highlighted:

Organizations can be classified according to various signs. Depending on the functions performed(that is, by the nature of their activities), government agencies are financed in accordance with the sections of the budget classification. Among them:

• Local self-government and state administration. This system, in particular, includes the Ministry of Defense, Accounts Chamber, Ministry of Finance, etc.
• Judicial bodies (Constitutional Court, Supreme Arbitration Court, Supreme Court, courts of general jurisdiction).
• Representative offices and embassies operating abroad.

Depending on the sources of funding, institutions that receive funds from the federal, regional or local budgets are distinguished. As mentioned above, organizations can carry out entrepreneurial activities. For example, the highest state budgetary educational institution has the right to provide paid services for teaching students by correspondence. Depending on the sources of income generation, organizations are thus distinguished:

• Providing services to legal entities and citizens for a fee.
• Carrying out activities for free. For example, budgetary educational institutions are mostly free.

Additional services

Budgetary institutions of education, culture, sports, and so on, provide socially beneficial services that serve as their main activity. It, in turn, is necessarily indicated in the constituent documentation. Their activities are carried out according to a task that they cannot refuse. The work is financed by providing subsidies. These incomes relate to targeted funds financing not included in the income tax base. In addition to a certain task, in cases provided for in the Federal Law, within the framework of the task, an organization can provide services and perform work corresponding to its main activity, for a fee on the same terms for everyone. Thus, a budgetary healthcare institution can carry out certain medical procedures, charging money for them from patients. An organization can also carry out activities other than its core only insofar as this will be a method of achieving the goals for which it was formed. In this case, the key condition is to indicate additional services in the constituent documentation. Types of activity other than the main one, for example, can be carried out by a budgetary vocational educational institution through the introduction of auxiliary paid courses into the program.

Taxation

Profit received from additional paid activities, as well as property acquired through it, comes at the independent disposal of the organization. This provision is established in Art. 298, clause 3 of the Civil Code. A budgetary educational institution that receives income from paid services must make deductions from profits in the manner prescribed by law. They are required to make only advance quarterly payments for the said tax. VAT is paid in accordance with the established procedure on paid services provided, including rent. A budgetary educational institution, like everything else, pays a fee for the use of “RF” in the name when registering constituent documentation, land tax and property tax.

Restrictions

A state budgetary educational institution, as well as others that provide publicly useful additional paid services, cannot use a simplified special taxation regime. This prohibition is established by Art. 346.12, paragraph 3, paragraphs. 17 NK. Also, organizations do not pay unified social tax. This provision is provided for in Art. 346.2, paragraph 6, paragraphs. 4 NK.

Autonomous organizations

They also fall into the non-profit category. Autonomous institutions are those that are created by a region, the Russian Federation or a Moscow Region to provide services/perform work in order to implement the powers of state authorities and local self-government provided for in legislation in the areas of:

Features of property disposal

An autonomous institution does not have the right to carry out any actions with immovable objects and especially valuable movable items without the consent of the owner. The remaining property that the organization has under the right of operational management can be disposed of at its own discretion, unless otherwise provided by law. At the same time, an autonomous institution may, with the consent of the owner, contribute immovable objects and especially valuable movable objects to the share (authorized) capital of other legal entities. The exception is objects of cultural and historical heritage of the Russian Federation, materials included in the Museum, Archive and National Library collections of Russia. The procedure according to which the property of an institution is classified as especially valuable is approved by the Government.

Changing the organization type

This procedure is carried out by decision of the executive government body at the appropriate level:

1. For federal institutions, this institution is the Government.
2. For regional organizations - the highest executive body of state power of a constituent entity of the Russian Federation.
3. For municipal institutions - local administration or department of the Moscow Region.

This procedure is enshrined in Federal Law No. 83, Art. 6, paragraphs 6 and 10. Changing the type of territorial or state budgetary institution is not considered as its reorganization. When an appropriate decision is made, adjustments are made to constituent documentation. According to the lawmakers, the procedure for transferring a budget institution to another type should include a minimum amount of activities organizational nature concerning changes in status (re-registration of rights to a land plot, re-allocation of property for management, etc.). The Government of the Russian Federation adopted an Order approving guidelines. They should be used when determining the criteria for transferring a budgetary institution to another type in accordance with the specifics of its activities. In addition, recommendations were approved regarding changes to labor contracts with heads of organizations. To bring the title documentation of budgetary institutions into compliance with the accepted requirements of the law, a transition period was defined. It was installed for a year and a half - from January 1, 2011 to July 1, 2012.

Conclusion

The main unifying feature for all budgetary institutions is the fact that only the Russian Federation, its subject or the Moscow Region can act as their founder. This provision is established in Federal Law 83 and Federal Law No. 174. The second significant common feature there is a list of those types of activities that a budgetary institution has the right to carry out in accordance with the purposes for which it was created. This list must be included in the organization's charter. In addition, a unifying feature of institutions of this type are restrictions on the disposal of property. Due to the fact that financing is largely provided through subsidies, the creation of organizations must have an economic justification and practical feasibility. Any budgetary institution is required to report annually on the management of property entrusted to it.

The work of government bodies in the aspect of developing public institutions and solving management problems is largely carried out through operating on various levels budgetary institutions. These are schools, kindergartens and other types of educational structures, medical institutions, various kinds of career guidance centers and many other social significant organizations. What are the characteristics of budgetary institutions? By what principles do they implement accounting and calculate taxes? What are the nuances of using terms that reflect possible options institutions of budgetary organizations?

What is a government agency?

To begin with, let’s define the common interpretations of the concepts in question. Government agencies- these are subjects of economic, executive-administrative and other activities created by the authorities of the Russian Federation at the federal and regional levels. Based on the wording of one of the relevant laws (namely, Federal Law No. 7 of January 12, 1996), municipal institutions are very close to state ones. That is, those that are created at the level of individual settlements, districts or districts.

In a number of cases, the term “government institutions” is identified with the concept of “budgetary organizations”. However, the latter, in connection with relatively recent reforms in the public administration system, in some cases take a narrower interpretation. In this article we will study the circumstances that determine this.

Classification of institutions

The main types of government institutions are state-owned, autonomous, and budgetary. There are three main criteria by which the three mentioned differ from each other. First, there are obligations. Secondly, these are functions. Thirdly, this is the specificity of financial support and cash management. Let's consider the features of each of the criteria.

State institutions classified as government institutions are responsible for their obligations based on available funds. If there are not enough of them, then the corresponding responsibilities are assigned to the owner of the organization. A budgetary institution - first of all, it is in this context that the interpretation of the term can be narrowed - is liable for existing obligations with the property that it uses through operational management (including what was acquired from proceeds from entrepreneurial activity), as well as real estate. Autonomous in terms of their obligations are responsible for any property other than real estate (as well as that which is of the “especially valuable” type).

Also, as we noted above, budgetary institutions, autonomous and state-owned ones differ in functions. Let us consider the relevant specifics of the distinction for each type of organization. State institutions are designed to perform mainly state and municipal functions, as well as provide services to both individuals and legal entities. In turn, the activities of a budgetary organization, as well as an autonomous one, should be concentrated only on service. State and municipal functions of this type of institution should not be performed.

The third criterion reflects financial aspect work of government organizations. First of all, it can be expressed in sources of core financing. In the case of autonomous and budgetary organizations These are subsidies, and for government institutions a corresponding budget estimate is provided.

Income that goes to government agencies through independent activities (we will also study this aspect a little later) is also subject to distribution within the framework of different rules. In the case of an autonomous or budgetary institution, they go to the organization’s independent use; as for state-owned government agencies, they are transferred to the budget. We also note that budgetary and government institutions can have current accounts only in the Federal Treasury, and autonomous ones can also have accounts in commercial banks.

Nuances of classification

At the same time, as lawyers note, there are no legal norms in Russian laws that would establish criteria by which to distinguish between the concepts of state “functions” and “services.” However, in some legal acts it is still possible to find relevant guidelines. In particular, based on the wording of Decree of the President of the Russian Federation No. 314 of March 9, 2004, which addresses the issues of the system executive bodies authorities, it can be assumed that the key difference lies in whether the exercise of political or administrative powers is present or absent in the activities of the organization. Such as, for example, control, issuance of licenses, supervision, etc.

Thus, we can interpret the term “budgetary organizations” in two ways. Firstly, such structures can be understood as any government organizations. Secondly, the term “budgetary organizations” can reflect only one of three types of government agencies. Those that, as a rule, do not include the exercise of power in their activities and are liable for their obligations only with the property that they have in operational management.

We also note that in a number of cases the term “budgetary organization” is identified with the concept of “municipal institution”. Strictly speaking, there is no particular mistake here. Simply because the activities of this type of organization are possible due to financing from the municipal budget, which is an integral part of the national financial management system. That is, it is included in the general budget of the Russian Federation. At the same time, the term "municipal institution" and " state organization"it is not entirely appropriate to identify. Why? The fact is that, in accordance with Russian legislation, state and municipal authorities are independent.

Thus, the term “budgetary organization” can be used as a synonym for such concepts as “state” or “municipal institution”. Or as an independent category - in the context of the classification of government agencies. The terms “state organization” and “municipal institution” should be equated with caution. Only if the relevant context does not suggest the likelihood of dual understanding. Of course, in all official documents, terms should be used based on the actual type of organization determined by who the founder is. This is always written down on paper, in the relevant title documents.

Government agency or state-owned enterprise?

We said above that the term “government institutions” is synonymous with the concept of “budgetary organizations”. Examples of structures, however, in which the state takes part, can be very different - there are, in particular, state-owned enterprises and state banks. Are they budgetary organizations? No. are not. Because typically budgetary institutions should be characterized by a combination of the following three characteristics:

• the main activity profile of organizations is not related to commercial activities;
• the founder of the structure is the Russian Federation, its subject or municipal entity;
• The main source of funding for the institution's work is the budget of the appropriate level.

Thus, there are the terms "state-owned enterprise", "state organization" and "institution". In some cases, of course, they can be considered synonyms, but based on the context, it may be appropriate to define only one of them.

For example, if we are talking about such structures as Sberbank or Rosatom, then it is quite acceptable to call them “organizations,” but not “institutions,” since their activities, at least, do not fully correspond to the first and third criteria. Moreover, the term “state enterprise” is more suitable for Rosatom, since this structure is occupied in the “real sector”.

The activities of Sberbank are mainly commercial - issuing loans, servicing accounts, as well as Rosatom, which receives revenue from the implementation of core projects, mainly related to energy. Accordingly, the need for budgetary support for each of these organizations is minimal. In turn, such a structure as, for example, the Regional Branch of the Social Insurance Fund for the Republic of Bashkortostan is more appropriate to be called a “state institution.”

What kind of relationship of terms is most fair? It can be assumed that a “Government Institution” is always an “organization”, but extremely rarely an “enterprise”. By the way, if the word “budgetary” is used in the name of the structure, then this, one might say, automatically classifies it as an “organization” that is not an enterprise, or, for example, a state corporation.

What other features can be identified as characteristic of government institutions? You can, in particular, pay attention to the 8th paragraph of Article 161 of the Budget Code of the Russian Federation - it says that a budget organization cannot receive credit from banks and other financial structures. In turn, a state-owned enterprise or state bank, as a rule, can. At the same time, budgetary organizations may well be an independent defendant in court. The fulfillment of relevant obligations can be ensured by limits of budget funds, and also provides for the founder. One of the most obvious classification criteria is the geographical location of the structure. For example, budgetary and most other settlements, as a rule, are referred to as belonging to the corresponding district or territorial authority. In turn, the name of state-owned enterprises may indicate affiliation with any legal form- for example, to a joint-stock company.

Who are the founders?

Who establishes a state budgetary organization? Everything depends on the level of functioning of the relevant authorities. Concerning federal structures, then they are established, in fact, by the state itself, that is, the Russian Federation. If we are talking about the regional level, then the founder is the subject - region, territory, republic. In the case of municipal structures - locality. There is a feature that characterizes budget cities and other federal cities. In them, the municipal unit, as a rule, is not the settlement itself as a whole, but its individual administrative parts - in Moscow, for example, these are districts. It should be noted that a budget organization can have only one founder operating at a specific level.

Types of activities of budgetary organizations

What types of activities are typically carried out by municipal and state institutions (in this context, all three types)? This is determined, first of all, by the main purpose of their creation. Which, based on the wording of Russian legislation, is the need to implement the powers of various bodies. Thus, the activities of a budgetary organization must correspond to the goals set by the structure that established them. Its specific types must be specified in the institution's Charter. If, during a departmental or supervisory audit, it turns out that the activities of some institutions do not correspond to the goals of the founder (as well as his powers or profile), then a decision may be made to liquidate these structures or transfer them to another body (or to another level of government). All these rules are also relevant for municipal structures. In principle, the legislation regulating the activities of all budgetary, in a broad sense, organizations, in general, is quite uniform. In some legal sources, the same norms can be simultaneously aimed at those operating at both the federal, regional or local levels.

We also note that a state or municipal budgetary organization can conduct activities that complement the main one, but are not similar to it due to typical characteristics. As a rule, we are talking about entrepreneurial activities. About running a “business”, about making commercial money. Which, due to their characteristics, are really far from the exercise of power and the provision of services to citizens. At the same time, the third-party activities in question must be consistent with the goals for which the institution was created. And therefore, the types of “business” of budgetary organizations must also be indicated in the relevant constituent documents.

What type of business activities can budget organizations engage in? Examples may vary. If this is, for example, a school, then entrepreneurial activities can be expressed in the organization of paid courses, printing documents on a printer or photocopying them, and selling office supplies.

Financial aspect

(organizations owned by the state, but of a commercial type imply self-sufficiency) structures, as a rule, are carried out at the expense of the treasury - federal, regional, municipal. Also, cash receipts can appear due to “business” - additional types activities, as well as through sponsorship. But, as a rule, the main channel of financing is at the appropriate level - municipal, regional or federal. Management of available funds in relation to the main functional activities of the institution is reflected in a special document - a plan of financial and economic activities. Note that it is needed only for two types of organizations - “autonomous” and “budgetary”. For “government” ones, another document is required - an estimate of income and expenses. The founder of the organization, in accordance with the provisions of relevant laws, must establish a procedure for compiling and providing such sources.

Taxation

We said above that, despite the fact that state (or municipal) institutions and organizations are budgetary, they can still conduct a kind of “business”. The income received in this case, as in the case of the activities of commercial companies, is subject to tax. By what standards is it calculated?

As soon as a payment is made by a “commercial profile” client who contacts an institution, or by a recipient of a service, the budgetary organization records the fact that funds have been received for current account or at the Federal Treasury.

The current tax legislation of the Russian Federation assumes that an institution must pay from its revenue several (if applicable, based on the specifics of specific areas of activity) existing fees at once. We are talking, first of all, about income tax. Regarding it, the object of taxation is the entire volume of revenue received in the organization’s current accounts, reduced, at the same time, by expenses incurred. Sources of income may be different - we gave several examples above. At the same time, income within the framework of budget financing, as well as other types of income of a targeted nature, are not considered profit - first of all, sponsorship. The income tax rate for budgetary organizations is 20%. 18% is subject to payment to the relevant financial and economic system of the constituent entity of the Russian Federation. 2% is transferred to the federal budget. Reporting periods- first quarter, six months, and also nine months.

Accounting

The next aspect of the activities of government agencies is accounting. Salaries in a budgetary organization, income from “businesses”, as well as sponsorship - all this is taken into account through accounting mechanisms. The rules and regulations regarding these processes are governed by federal law. The key sources of law here are the Tax Code of the Russian Federation, as well as the Federal Law “On Accounting”. What nuances regarding this area of ​​activity of institutions can be noted?

We said above that the property of budgetary organizations is under operational management. It is interesting that, according to the law, it is classified in accounting procedures as if it were owned (as is the case with commercial structures). Thus, in the practice of government institutions, as some experts believe, one can observe a case of the implementation of real rights outside the institution of property.

State institutions of an autonomous type, as well as budget ones, must use in their activities the charts of accounts of accounting, determined by the relevant Orders of the Ministry of Finance. They are different for each type of institution. must use the budget accounting chart of accounts, also standardized by the relevant Order of the Ministry of Finance. Working as an accountant in a budget organization obviously involves very high level responsibility.

Income and expenses

What types of income and expenses may appear in the reporting and accounting documents government agencies? What are the specifics of their recording in the relevant sources? Regarding budgetary institutions, expenses can be classified only on the following grounds:

• remuneration under employment contracts;
• transfer of contributions to the Pension Fund, Social Insurance Fund, Compulsory Medical Insurance Fund for employees;
• transfers provided for by law;
• issuance of travel allowances and other payments to employees;
• payment for goods and services in accordance with municipal or state contracts, as well as estimates.

Other options for spending funds by budgetary organizations are not permitted by law.

Alexander Zhukov, chief legal specialist at the Federal State Institution "Ivanovo Selles".

The problem of rational and legal use of property is relevant for any organization. For budgetary institutions this problem is far from the last, since legal regime The use of property may vary depending on the grounds and sources of receipt of funds and acquisition of property. What is the right to own acquired property, how to dispose of it? Questions, the answers to which are extremely important for budgetary institutions in the process of solving economic problems.

Income activities

An institution, in relation to the property assigned to it and property acquired from funds allocated to it according to the estimate, exercises the right of operational management (Article 296, paragraph 1 of Article 298 of the Civil Code of the Russian Federation).

At the same time, the institution is legally given the opportunity to carry out income-generating activities with the consent of the founder. Income received from such activities and property acquired at the expense of these incomes come to his independent disposal (Clause 2 of Article 298 of the Civil Code of the Russian Federation).

The opportunity for a budgetary institution to carry out income-generating activities is also provided for in paragraph 3 of Art. 50 Civil Code of the Russian Federation, clause 2, art. 42, paragraph 3, art. 161, paragraph 1, art. 232, paragraphs 4 and 6 of Art. 254 of the Budget Code of the Russian Federation, as well as in a number of other regulations, including the laws on the federal budget approved annually.

In the articles of the Budget Code of the Russian Federation (BC RF) listed above, these activities are defined as entrepreneurial and other income-generating activities.

If cash institutions received from activities permitted to it are equated to additional budget financing on behalf of the owner (see, for example, Article 28 of the Law “On the Federal Budget for 2004” dated December 23, 2003 N 186-FZ), then in the expenditure of these funds the institution is not formally independent and the regime of paragraph 2 of Art. 298 of the Civil Code of the Russian Federation does not apply to it. According to the current legislation, a budgetary institution is independent only in spending funds received from extra-budgetary sources (clause 6 of Article 161 of the Budget Code of the Russian Federation).

If the funds received do not relate to budget financing, the institution, in accordance with Art. 161 BC RF and Art. 298 of the Civil Code of the Russian Federation is independently at their disposal.

In this regard, questions arise related to the nature of the institution’s rights to independently dispose of funds received from extra-budgetary sources and property acquired with these funds:

• What legal regime does the money earned by the institution and the property acquired with it have?
• To what extent is the institution allowed to independently dispose of them?
• who is the owner of this property?

Ownership or other right?

In accordance with paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, institutions belong to legal entities, the property of which their founders have ownership rights. According to Art. 128, 130 of the Civil Code of the Russian Federation, funds are a thing and are recognized as movable property, the ownership of which also has the founder.

At the same time, there are attempts to secure ownership of certain types of income and property for individual institutions (see, for example, paragraph 7 of Article 39, paragraph 1 of Article 44 of the Law “On Education”). Most often, they refer to clause 3 of Art. 120 of the Civil Code of the Russian Federation, according to which the features legal status certain types of state and other institutions are determined by laws and other legal acts. But we note that these laws and legal acts, regulating property issues, should not contradict the Civil Code of the Russian Federation (Article 3 of the Civil Code of the Russian Federation), which, in turn, does not contain provisions on the property rights of institutions, but directly indicates the opposite (Article 213, 214 of the Civil Code of the Russian Federation, etc.). Therefore, the property cannot be owned by the institution.

Since an institution is often financed only partially by the owner (clause 1 of Article 120 of the Civil Code of the Russian Federation), it, with the consent of this owner, is sometimes forced to engage in activities unusual for it, namely, to seek additional funds for the implementation of direct statutory functions in accordance with the owner's instructions.

As has been repeatedly noted in the legal literature, it would be fair to assume that the institution should receive additional property rights for the funds earned in this way and the property acquired with them. And the law basically implies this. According to Art. 298 of the Civil Code of the Russian Federation, the property of an institution acquired at the expense of additional income, as well as the additional income themselves, are accounted for on a separate balance sheet in order to separate this property from the property assigned to the institution by the owner or acquired from funds allocated to the institution according to the estimate. And also, probably, in order to separate different legal regimes for the disposal of property acquired for different reasons.

With funds received from extra-budgetary sources, it is somewhat easier for an institution to manage it independently. In order to quickly solve specific problems, the institution, taking into account its needs, independently plans the distribution of these funds according to subject code items economic classification within its budget of income and expenses. And then, in the manner established by the main manager of funds, the estimate is adjusted if necessary.

As for property acquired at the expense of extra-budgetary funds, the question of the limits of independent disposal of this property is of serious importance for the institution when it participates in civil circulation. What to do, for example, with collateral? The law (Article 335 of the Civil Code of the Russian Federation) allows only its owner or a person who has the right to the thing to be the pledgor of a thing economic management.

New property right

Supporters of one position consider the regime for disposing of property acquired using extra-budgetary funds as an independent property right, which does not fit within the framework of the right of operational management or the framework of the right of economic management<*>.

<*> Civil law/ Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 2002. T. 1. P. 488 - 490.

In Article 216 of the Civil Code of the Russian Federation, the list of real rights is given with the mark “in particular”, that is, in addition to those mentioned, it is implied that there are other types of real rights established by law, one of which, according to supporters of this version, is the right of an institution to dispose of property received in result of economic activity.

Meanwhile, the Civil Code of the Russian Federation does not disclose the content of this right anywhere. In addition, Art. 298 of the Civil Code of the Russian Federation, which stipulates the possibility of independent disposal of property, is placed in Chapter 19 of the Civil Code of the Russian Federation “Right of economic management, right of operational management” and does not contain other property rights.

The list of real rights, as rightly noted in the legal literature, cannot include rights the content of which is not directly disclosed by law<*>.

<*>Civil law / Ed. E.A. Sukhanov. M., 2003. T. 1. P. 607 -608.

If we assume that an institution can have separate property with the right of independent disposal and, accordingly, answer for its obligations, then the question arises of how this is consistent with paragraph 1 of Art. 48 of the Civil Code of the Russian Federation, which states that a legal entity is an organization that has 1) in ownership, 2) economic management or 3) operational management of separate property and is liable for its obligations with this property.

As we see, there is no other property right here.

Consequently, the position in which the right to independently dispose of property is considered as a separate property right seems less reasoned, although logical.

Right of economic management

Supporters of another position consider the right of an institution to independently dispose of property as the right closest to the right of economic management.

Earlier in the Fundamentals of Civil Legislation of the USSR and the Republics (approved by the Supreme Court of the USSR dated May 31, 1991 N 2211-I), in paragraph 2 of Art. 48, it was expressly stated that income and property received from permitted business activities belong to the institution with the right of full economic management.

Due to the absence of similar wording in the current legislation, most authors do not call the right in question directly the right of economic management and do not try to fully extend the norms of the legal status of the right of economic management to the activities of an institution for independent disposal of property, but only point out the similarities with it.

In addition, we note that according to the wording of Art. 294 of the Civil Code of the Russian Federation, the subject of economic management rights can only be a state (with the exception of a state-owned) or municipal unitary enterprise, but not an institution. In addition, according to paragraph 1 of Art. 295 of the Civil Code of the Russian Federation, the owner of an enterprise whose property is under economic management has the right to receive a portion of the profit from the use of this property. But, as we know, institutions, as well as other non-profit organizations, cannot distribute the profit received between participants (Clause 1 of Article 50 of the Civil Code of the Russian Federation).

Let us also note that if, in accordance with the right of economic management, the owner’s consent is required for the disposal of real estate (clause 2 of Article 295 of the Civil Code of the Russian Federation), then this is no longer an independent disposal in the sense of clause 2 of Art. 298 Civil Code of the Russian Federation.

And therefore, as it is fairly and cautiously noted, the right to independent disposal of income and property is only similar to the right of economic management and, therefore, is not it in full.

Right of operational management

From another position expressed in the legal literature, the right to independently dispose of property is considered as another type of operational management right. There are also grounds for such a statement.

The institution exercises the right of operational management (Article 296 of the Civil Code of the Russian Federation) in relation to the property assigned to it. What to do with self-acquired property in this case? Should it be considered assigned to the institution on behalf of the founder? If you remember Art. 214 of the Civil Code of the Russian Federation, as well as paragraph 2 of Art. 48 and 299 of the Civil Code of the Russian Federation, which respectively speak of the founder’s ownership of all property of the institution and the grounds for acquiring the right of operational management, then perhaps this is so.

The founder, allowing the institution to receive additional income, apparently wants the income received to be used for the needs and development of the institution. Otherwise, what is the point of allowing an institution to be distracted by activities unusual for it? And since an institution cannot have profit as the main goal of its activities, then both the acquired property and income must be used primarily for the main statutory activity, and not for economic activity, as would be the case if there was the right of economic management. Although, on the other hand, the problem is what legal regime to apply when disposing of property, that is, how to use it, and not where to direct the received funds.

In addition, when carrying out activities related to generating income, the institution uses human resources and material and technical base financed by the owner, and therefore the founder is also directly related to such activities of the institution, and in established cases bears responsibility for its obligations.

In this regard, we will touch upon the subsidiary liability of the owner of the institution.

In accordance with paragraph 2 of Art. 120 of the Civil Code of the Russian Federation, an institution is liable for its obligations with the funds at its disposal. If they are insufficient subsidiary liability the owner of the relevant property bears its obligations.

Thus, property, including that obtained from the institution’s independent income, is protected from recovery by creditors. And if we accept that the institution owns such property with the right of independent disposal (or with the right of economic management), and subsidiary liability is assigned to the founder, then the legislator’s position regarding the responsibility of a budgetary institution only in cash appears illogical.

In turn, funds received by an institution from carrying out income-generating activities, in the presence of accounts payable, including through the fault of the owner, do not fall under the category of “independent disposal”, but will be collected to pay off the budgetary debts of the institution.

All of the above gives grounds to agree that the disposal of income and property received by an institution from income-generating activities is closer to the right of operational management. And given the insufficiency of legislative norms regarding the application of other property rights, this is what it is.

The following conclusions can be drawn.

An institution, especially a budgetary one, needs to take a careful and balanced approach to resolving the issue of its powers regarding the independent disposal of received funds and property. The initiative in this case may be punishable, since there is no consensus on the identified problem even among civil law researchers.

In order to eliminate further disagreements on the interpretation and application of the provisions of paragraph 2 of Art. 298 of the Civil Code of the Russian Federation requires a regulatory solution in the form of additions to the Civil Code of the Russian Federation, specifying the above problem.

Today, paragraph 2 of Art. 298 of the Civil Code of the Russian Federation in terms of independent disposal of relevant income and property directly and in full does not apply.

In our opinion, the legal regime of “independent disposal” is concluded within the framework of the right of operational management and, possibly, the special proprietary right of an institution to independently dispose of property. But at present, taking into account the noted norms, it is rather a type of operational management right, somewhat different from the operational management right itself. to a greater extent freedom of establishment in relation to the relevant property and restriction of the owner’s right to withdraw it. The independent disposal specified in the law is in any case limited by the special legal capacity of the institution and the need to act in the interests of the owner.

The right of operational management is a special type of real rights, along with the right of ownership, with the right of economic management, and in comparison with them, the right of operational management is inferior in scope of powers.

In accordance with the civil legislation of the Russian Federation, the right of operational management is the right of institutions and state-owned enterprises to own, use the property assigned to them within the limits established by law, in accordance with the goals of their activities, the purpose of such property and, unless otherwise established by law, to dispose of such property with the consent of its owner.

In this case, the owner of the property has the right to withdraw excess, unused or misused property assigned to an institution or a state-owned enterprise or acquired by an institution or a state-owned enterprise at the expense of funds that were allocated to it by the owner for the acquisition of this property. The owner has the right to dispose of property seized from an institution or state-owned enterprise at his own discretion.

Let us consider in more detail the rights, as well as restrictions on the rights of institutions and state-owned enterprises in relation to the property assigned to them under the right of operational management in the following sections.

Property of a state-owned enterprise

A federal government enterprise has the right to alienate or otherwise dispose of property belonging to it only with the consent of the Government Russian Federation or the federal executive body authorized by him.

State-owned enterprise of a constituent entity of the Russian Federation - only with the consent of the authorized body state power subject of the Russian Federation. Municipal government enterprise - only with the consent of the authorized local government body.

A state-owned enterprise has the right to alienate or otherwise dispose of property belonging to it only with the consent of its owner and only to the extent that does not deprive it of the opportunity to carry out activities, the subject and goals of which are determined by the charter of such an enterprise.

The charter of a state-owned enterprise may provide for types of transactions and (or) their size, the commission of which cannot be carried out without the consent of the owner of the property of the state-owned enterprise. A state-owned enterprise independently sells its products (work, services), unless otherwise established by current legislation.

A state-owned enterprise operates in accordance with an estimate of income and expenses, which is approved by the owner of the property of such an enterprise. A state-owned enterprise independently sells the products it produces, unless otherwise established by Russian legislation.

A government enterprise, having leased a land plot that is located in the state or municipal property, not entitled:

• sublease it;
• transfer your rights and obligations under the lease agreement to third parties;
• pledge rental rights;
• contribute rental rights as a contribution to authorized capital business partnerships and societies or as a share contribution to a production cooperative.

Property of a public institution

Public institutions created and financed by the owner (owners) exercise the right of operational management of such property in relation to the property assigned to them.

Public institutions that are legal entities and own property with the right of operational management may be the owners of what they created and (or) acquired by others by legal means property.

When the ownership of property assigned to a public institution is transferred to another person, this public institution retains the right to operationally manage such property.

Without the written permission of the owner, public institutions do not have the right to alienate or otherwise dispose of the property assigned to them, as well as acquired from the funds allocated to them according to the estimate.

If the constituent documents grant a public institution the right to carry out income-generating activities, then the income received from such activities and the property acquired from these incomes come to the independent disposal of the public institution and are accounted for on a separate balance sheet.

Public institutions are liable for their obligations with the funds at their disposal. If there are insufficient funds, the owner of the relevant property bears subsidiary liability for the obligations of the public institution.

Property of an autonomous institution

1. The property of an autonomous institution is assigned to it with the right of operational management in accordance with the Civil Code of the Russian Federation. The owner of the property of an autonomous institution is the Russian Federation, a subject of the Russian Federation or a municipal entity.

2. In the absence of the consent of the founder, an autonomous institution does not have the right to dispose of real estate and especially valuable movable property that are assigned to it by the founder or acquired by the autonomous institution at the expense of funds allocated to it by the founder for their acquisition.

The autonomous institution has the right to dispose of the remaining property (including real estate) independently. The exception to this is the property specified in paragraph 5 of this section.

Particularly valuable movable property

For a more complete and correct understanding, the legislator has given a definition of the concept of “particularly valuable movable property” - this is movable property, without which the implementation of its statutory activities by an autonomous institution will be significantly difficult. The procedure for classifying property as especially valuable movable property is established by the Government of the Russian Federation.

3. The decision to classify property as especially valuable movable property is made by the founder simultaneously with the decision to assign such property to an autonomous institution or to allocate funds for its acquisition.

4. Real estate that is assigned to an autonomous institution (acquired from funds allocated to it by the founder for the acquisition of this property), as well as especially valuable movable property that is located at an autonomous institution, is subject to separate accounting in the prescribed manner.

5. With the consent of its founder, an autonomous institution has the right to contribute the property specified in paragraph 4 of this section to the authorized (share) capital of other legal entities or otherwise transfer such property to other legal entities as their founder or participant.

The exceptions to this are:

- objects cultural heritage peoples of the Russian Federation;

— objects and documents that are part of the Museum Fund and the Archive Fund of the Russian Federation, the national library fund.

6. Land plot, which is necessary for an autonomous institution to fulfill its statutory tasks, is provided to it on the right of permanent (indefinite) use.

7. An autonomous institution has the right to carry out income-generating activities only insofar as it serves to achieve the goals for which it was created and is consistent with these goals (provided that such activities must be indicated in its constituent documents). Income received from such activities and property acquired from these incomes shall be at the independent disposal of the autonomous institution.

Property of a private institution

A private institution does not have the right to alienate or otherwise dispose of property that is assigned to it by the owner or acquired by this institution at the expense of funds allocated to it by the owner for the acquisition of such property.

A private institution has the right to carry out income-generating activities only if such a right is provided for in its constituent document. At the same time, income received from such activities and property acquired from these incomes are at the independent disposal of a private institution.

Property of a budgetary institution

Without the consent of the owner, a budgetary institution does not have the right to dispose of especially valuable movable property, which is assigned to it by the owner or acquired by the budgetary institution at the expense of funds allocated to it by the owner for such acquisition, as well as real estate.

The budgetary institution has the right to dispose of the remaining property that it has under the right of operational management independently, with the exception of cases provided for by law:

1. A budgetary institution can carry out a major transaction only with the prior consent of the relevant body exercising the functions and powers of the founder of the budgetary institution.

At the same time, the legislator defines the concept of “major transaction” - this is a transaction (several interrelated transactions) associated with the disposal of funds, the alienation of other property (which, in accordance with the law, a budgetary institution has the right to dispose of independently), as well as with the transfer of such property for use or as collateral under certain conditions.

The condition is that the price of such a transaction or the value of the alienated (transferred) property exceeds 10% of the book value of the assets of the budgetary institution, determined according to its data financial statements as of the last reporting date, unless the charter of the budgetary institution provides for a smaller size of a major transaction.

A major transaction made in violation of the above requirements may be declared invalid at the suit of a budgetary institution or its founder, if it is proven that the other party to the transaction knew (should have known) about the absence of the prior consent of the founder of the budgetary institution.

The head of a budgetary institution is liable to the budgetary institution in the amount of losses that were caused to the budgetary institution as a result of a major transaction in violation of the above requirements, regardless of whether such a transaction was declared invalid.

2. A budgetary institution does not have the right to place funds on deposit with credit institutions and enter into transactions with securities, unless otherwise provided by current legislation.

3. In the event that an interested person has an interest in a transaction to which a budget institution is or intends to be a party, as well as in the event of another conflict of interests between the specified person and the budget institution in relation to an existing (proposed) transaction:

- it is obliged to report its interest to the relevant body exercising the functions and powers of the founder of a budgetary institution until a decision is made to conclude a transaction;

- and such a transaction must be approved by the relevant body exercising the functions and powers of the founder of the budgetary institution.