Дарение в имущественном праве

Concept in property law

A gift, in the law of property, is the voluntary and immediate transfer of property from one person (the donor or grantor) to another (the donee or grantee) without consideration. There are several type of gifts in property law, most notably inter vivos gifts which are made in the donor's lifetime and causa mortis (deathbed) gifts which are made in expectation of the donor's imminent death. Both types of gifts share three elements which must be met in order for the gift to be legally effective: donative intent (the intention of the donor to give the gift to the donee), the delivery of the gift to the donee, and the acceptance of the gift. In addition to those elements, causa mortis gifts require that the donor must die of the impending peril that he or she had contemplated when making the gift.

An inter vivos gift is an ordinary gift of personal property from one living person to another. It can be a gift of a present or future interest in a property. The three elements of an inter vivos gift are donative intent, delivery, and acceptance. Acceptance of a valuable gift is typically presumed by courts and thus is rarely a legal issue. If the gift is of a type that cannot be delivered in the conventional sense – a house, or a bank account – the delivery can be effected by a constructive delivery, wherein a tangible item allowing access to the gift – a deed or key to the house, a passbook for the bank account – is delivered instead. Symbolic delivery is also sometimes permissible where manual delivery is impractical, such as the delivery of a key that does not open anything, but is intended to symbolize the transfer of ownership. The transfer of equitable interests must be performed in writing by the owner or their agent. A gift is assumed when property owner deeds real estate as joint tenants with rights of survivorship. Regardless of contribution to purchase price, such a deed guarantees each tenant equal shares upon sale or partition of the property.

In India, previously there was Gift Tax Act under which donor had to pay the gift tax on the amount of gift. However, the said Act has been abolished and from FY 2004–05, a new provision was inserted in the Income Tax Act (1961) under section 56 (2) which provides that if the gift is received by an individual or Hindu undivided family from any relatives or blood relatives or at the time of marriage or as inheritance or in contemplation of death, it will not be taxable. In all other cases if the aggregate of gifts received exceeds Rs 50,000 in a year, the gift will be taxable as income from other source.

Gifts into a trust above a certain value (known as the nil rate band which is currently £325,000 but this limit may be reduced by certain gifts made in the last 7 years) are generally subject to inheritance tax in the United Kingdom though at the reduced rate of inheritance tax of 20% rather than the full rate of 40%. There are certain reliefs that may apply to reduce or eliminate the IHT due including business property relief and agricultural property relief. Gifts to individuals are generally not subject to inheritance tax unless the donor dies within 7 years of the date of the gift. There is anti avoidance legislation to prevent assets being gifted but with the donor retaining a benefit from the asset (for example the gift of the main residence while continuing to live in it will be ineffective from an IHT perspective unless market value rent is charged). Gifts in life may be a way to circumvent inheritance tax on death.