Years ago, the tradition of giving gifts during the Christmas holidays crept into companies that, on these days, treated their best suppliers or customers with, among other things, some wine or typical sweets, a football card or a ham. However, be careful with this exchange of details because in some cases it has consequences. Companies may reprimand and even fire an employee for accepting an excessive gift. In addition, if the gesture is made to obtain preferential treatment, it may constitute a crime of corruption or bribery if a public official is involved.
There is no golden rule as to whether a gift arrived at the office or home at Christmas should be rejected as suspicious, although its economic value or exceptionality can serve as a guide for both the giver and the recipient. As María Jesús Hernández, partner at RSM, a specialist in criminal economics and corporate compliance (a set of best practices that an organization adopts to comply with the law), explains: “There is no uniform criterion for quantitative limits, but it is so. “ We understand that all people who are within social and polite conditions and have a minimum value are admitted.
In all cases, the employee must adhere to the company's ethical principles and refuse prohibited gifts. Of course, a first filter will always be common sense: a bottle of wine is not the same as a trip to Punta Cana. Companies usually set a limit of between 90 and 300 euros per gift. A hurdle that in many cases drops to 50 or 100 euros, says Jeannell Alfau, corporate crime and compliance manager in Ecija. The normal thing, the lawyer explains, is that when rejecting certain gifts, companies are guided by “the possible impact they could have on the decision-making of the person receiving them.” In the Christmas context, gifts such as “bottles of wine, fruit baskets, lottery tickets, advertising or company details as well as specific invitations to social events or sporting events” are permissible, he emphasizes.
If you have any doubts about the amount of the Christmas gift, it is best to contact the person in charge of the organization (compliance officer) “and provide him with the ticket or gift so that he can proceed in accordance with the company's internal guidelines.” ” recommends María Jesús Hernández. The lawyer believes that examining these gifts should be common practice in organizations. In fact, his law firm points out that companies require compliance officer approval any time an employee “receives or sends a gift to a customer or supplier with whom a professional relationship exists.”
Behaving with your back to the company and keeping certain gifts for yourself can be seen as a breach of trust. If serious, it would warrant disciplinary dismissal of the employee. As in the case of two bank employees who were fired after accepting gifts such as trips to Punta Cana with a companion, dinners at expensive restaurants and even a temporary contract for their children in exchange for turning a blind eye to some operations. The Supreme Court of Madrid confirmed the dismissal of these two workers in 2015, accepting as good the version of the company's auditors. On the contrary, in 2019, the Andalusian judiciary rejected the dismissal of another bank employee whose husband had accepted the inheritance of one of her clients, because, although this violated the code of ethics, it could not be imposed on a person outside the company.
Criminal risk
The truth is that since companies can sit in the dock (in Spain since 2010), they scrutinize any gift that smells of scorching. When it comes to a possible crime, what matters is not so much the price of the gift, but whether it is “in return for an unlawful favor,” explains José María de Pablo, partner and head of the crime department at Bufete Mas. and Calvet. “Giving a gift as an expression of affection, gratitude or good Christmas education is not a crime,” emphasizes the lawyer.
For example, in 2017, the Supreme Court considered the gift of a few bottles of Vega Sicilia and Alión, worth almost 685 euros, to some high-ranking officials as an “act of courtesy” since “they did not affect the impartiality of those assessed”.
Unlike the crime of bribery, which involves buying off a public official in order to obtain, for example, a contract, corruption in business relationships consists of using gifts to illegally promote the sale or contracting of services. Since this behavior, punishable by up to four years in prison, can have an impact on the organization, “if the company believes that a crime has occurred, it must report the employee and file a lawsuit against him as well “taking the necessary measures means preventing it,” says De Pablo.
It must be taken into account, adds María Jesús Hernández, that in these crimes “the free market and consumers” are protected. Jeannell Alfau therefore points out that companies that benefit from the transfer can be held criminally liable as long as they are exploited “directly or indirectly” and “seriously” violate the obligations of “supervision, supervision and control” towards the corrupt have employees. To prevent this, experts advise, the ideal thing to do is to give the organization an ethical culture, because even at Christmas there are poisoned gifts.
Treasury and Christmas gifts
The tax treatment of gifts received by employees from their companies can be challenging. As Marcos González, associate at Cremades & Calvo-Sotelo, points out, gifts should generally be included in employee payroll as benefits in kind, although he admits that “this happens very rarely in companies.” Commercial companies, in turn, can deduct the costs of caring for employees if “this practice is common in the company,” the tax expert explains. However, González warns: “VAT payments incurred on the purchase of goods or services intended for gifts, dinners or other types of Christmas entertainment are not deductible for the company.”
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