Donating an apartment is a gratuitous transaction of transferring it by the old owner to a new one under a donation agreement. That is, the donor is not entitled to demand that the donee give him something in return for such a document as a gift certificate for an apartment. The taxes paid in this case are defined in the legislation.
Giving an apartment: general legal norms
1. A gift is always free. In a deed of gift to an apartment, items obligating something done by the donee in relation to the donor cannot be recorded. If monetary compensation, rent or dependents of the donor are specified in the gift agreement, then it is legally void. Suppose that a certain “donee” has in his hands a gift for an apartment received with such conditions. The taxes paid in this case are levied at the rates established for the sale or annuity contracts (life-time maintenance).
2. The gift is always urgent. The apartment becomes the property of the donee directly after registration by him of the gift in Rosreestr and receipt of the certificate. Recording in the gift certificate that the donee takes ownership of the apartment after the death of the donor is illegal. For such conditions, a will is applied with registration of the apartment as an inheritance and payment real estate tax.
3. The gift is voluntary for both parties. Until the moment of registration of the gift in Rosreestr, they can change their mind and declare the gift invalid. Of course, in this case no tax is paid.
If the apartment has a sole proprietor, then he has the right to present it to any individual without the permission of any of the persons registered in it. The ownership right passes to the new owner after signing by the parties of the deed of gift and its registration in Rosreestr.
If the apartment is in shared or joint ownership, then:
• The owner of a share in the ownership of an apartment may donate it without the consent of the remaining equity holders; such an agreement is completely legal. That is, if you own half of the apartment in shared ownership with someone and want to give this half to your child, then you do not need to obtain the consent of another shareholder.
• If the property is joint, then in order to donate a share in it, the donor must obtain the written consent of all other owners for such a transaction.
The tax rate does not depend on whether the whole apartment is presented or only part of it.
A Brief History of Gift Taxation
Until 2006, the Law of the Russian Federation of December 1991 was in force in Russia under the title “On tax on property that transfers by inheritance or gift”, which establishes the amount and procedure for tax when donating an apartment. Federal Law of 01.07. 2005 N 78-ФЗ abolished this tax and actually replaced it with personal income tax, which as of 2015 is regulated by the Tax Code. That is, only the name and the regulatory act have changed, according to which the tax is levied. But still, you will have to pay tax for the donated apartment. At the same time, as according to the old law, if the whole apartment is donated, then its full price is subject to taxation. If a share in the ownership of an apartment is given, then the tax is taken from the value of this share.
Personal income tax is levied only on gift contracts that are concluded no earlier than January 1, 2006.
What is the size of the gift tax for the apartment?
This year, its amount is 13% of the value of the apartment. The tax is paid by the donor.But what kind of cost should be taken in determining the base of personal income tax? After all, the gift may not contain any value of the apartment.
For a long time, the type of value of the apartment with which the gift tax is taken has been the subject of controversy. The position of the Federal Tax Service was as wide as possible: it was allowed to take the contractual, market, inventory (calculated in the BTI) and even the cadastral value as a base. In fact, each inspection had its own practice.
Finally, last year the Ministry of Finance drew a line under this disagreement by establishing in its letter of 05/08/2014 N 03-04-05 / 21903 that the gift tax, the amount and procedure of which was determined by the Tax Code of the Russian Federation, was paid on the market value of the apartment. True, the question now arose, but how to determine it correctly? So far, the easiest (and cheapest!) Way is to take a certificate from the local CCI with the average market price of apartments in the city and indicate it in the gift.
Gift tax paid by non-residents
The law does not restrict homeowners in their right to donate it to foreigners. Such a non-resident person of the Russian Federation, who has in his hands a gift for an apartment, is taxed at a rate of 30%. A change in the rate is possible on the basis of an international agreement drawn up to exclude double taxation.
Payment of tax by a non-resident under an apartment donation agreement must be made before he registers his ownership of it.
If the apartment is given to a relative
Often, citizens have questions: "If the mother (or father) gives the apartment to her son (daughter), does such an endowed person have an obligation to pay the gift tax for the apartment? Does his gifted grandchildren have to pay?"
The Tax Code of the Russian Federation exempts close relatives from the gift tax. That is, if a person gifted with an apartment is closely related to the donor, then he does not have an obligation to pay personal income tax on its market value.
Which relatives are close?
If the apartment is donated within the same family, then any of its members does not need to pay a gift tax. Children (including adopted) can receive a donation apartment from their parents, or grandchildren (including half-parents, that is, having only one common parent) from their grandmother or grandfather. It is possible and vice versa, to give apartments from the younger generation to the older or within the same generation - between brothers and sisters.
Unconditional close relatives are husbands and wives. But uncles (aunts) and nephews do not belong to them.
Relation degree confirmed by relevant certificates (of marriage, birth, adoption).
Payment procedure for personal income tax
Suppose you have a gift in your hands for an apartment. The taxes paid in this case are determined by the Tax Code of the Russian Federation and are noted above in the text. Therefore, after registering a donation at Rosrestre, you must submit by the end of April the next year donating the apartment of the year to the tax at your place of registration declaration in form 3-NDFL on your income, indicating the value of the apartment in it and presenting a certificate of ownership of it. If the donee is in close relationship with the donor and, accordingly, is exempted from paying income tax on individuals, he must still provide the tax inspector with a declaration, as well as documents confirming the degree of relationship.
Taxes themselves will calculate the amount of tax and send you a receipt with a notice of tax calculation. It can be paid at any bank.
A couple of private cases of personal income tax payment upon the donation of an apartment
What to do if you are a senior citizen and you have a gift certificate for an apartment? The taxes paid in this case do not imply any pension benefits. All pensioners are required to pay personal income tax in this case in the amount of 13%.
It turns out that there is another category of persons, which, along with close relatives, is exempt from personal income tax on the fact of donation.Employees of foreign consulates and their family members were exempted from it. This rule is enshrined internationally yet Vienna Convention on Diplomatic Relations 1961
Sanctions for non-payment or late payment of personal income tax
For missing the deadline for submitting form 3-NDFL, the donee is required to pay a fine of 5% (but not less than 1000 rubles) of the amount of unpaid tax for each month from the date of its submission, but not more than 30% of the full amount of tax.
The donee is required to pay the full amount of tax until July 15 of the year of filing the 3-NDFL declaration. If he misses this period, he will pay a fine of 20% of the tax charged. If intentional is proved non-payment of tax then the fine will increase to 40%, and the payment of a fine does not cancel the payment of the tax itself.
If the donee evades tax, then he is recovered in court. At the same time, a justice of the peace adjudicates a decision on taxes of not more than 50,000 rubles; on large sums, a lawsuit is considered by a district or city court, which can charge a fine for each day of delay, and even oblige the defendant to pay the state fee for filing a tax claim. Therefore, it will be better to pay personal income tax on time.
Fictitious purchase and sale instead of giving an apartment
Often, between the donor and the lofty one, an apartment purchase and sale transaction is drawn up in which money from the latter is not transferred to the first. What is the result? Suppose you are so “lucky” and you have a gift in your hands for an apartment. The taxes paid in this case are minimized. If the term of the apartment in the ownership of the seller-donor is 3 years or more, then personal income tax is not paid to them. If the tenure is less, then the tax is still 13%, but its base is the amount of excess of the cost of the apartment over 1 million rubles, i.e. the tax base is reduced by a million, as a result of which personal income tax is reduced.
It is necessary to say about the risks of such a fictitious contract of sale. Since it disguises a different type of transaction, the court may declare it invalid (third parties may apply to the court whose rights have been infringed). In addition to the fact that such an agreement will be terminated by the court, the parties may be held criminally liable.
Risks when concluding an apartment donation agreement
There are a number of cases where an apartment donation agreement may be invalidated. So, one legal entity cannot give an apartment to another legal entity, since such transactions between them are prohibited. However, a legal entity can give an apartment to an individual.
It is clear that donating an apartment after the death of the donor (for example, by proxy) is a fraudulent transaction and is knowingly invalid. Also, the apartment may be encumbered with a bank pledge, a contract of annuity or maintenance for a dependent period. Then it also cannot be transferred under a deed of gift.
