Article updated: August 16, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years
Hello. The total cost of conducting the entire transaction of donating an apartment to a notary includes: 1) the cost of drawing up and certification of the donation agreement; 2) submitting an agreement to register the transaction; You may also need an additional service - notarized consent from your spouse.
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Tax on gift of an apartment - what is it?
When an apartment is given to you free of charge, the donation process itself is not subject to tax. By law, you are considered to have received income in the form of the cost of housing. And for any income you need to pay taxes. Therefore, the tax when donating an apartment will be 13% of the gift price.
There are no exceptions based on age or other criteria. Pensioners, people with disabilities, and orphans must pay the apartment donation tax on an equal basis with everyone else. And for children who are not yet 18 years old, the fee will be returned to the state by their parents, guardians or trustees.
Important! Only the person receiving the gift pays the tax. The one who gives the gift owes nothing to the state. The donor receives no income. And since there is no profit, there is no tax.
Does the transaction need approval from the remaining owners?
Article 246 of the Civil Code regulates relations related to shared property. It states that all transactions based on a remunerative (mutually beneficial) nature must be carried out with the consent of the remaining owners.
That is, when selling a share, permission is required from the remaining owners. The main word here is compensated. That is, in those transactions in which the owner will benefit.
The deed of gift is gratuitous in nature. The owner does not receive any benefits from the transaction. This means that consent from other owners is not required. Exceptions include minors and spouses. Here, in some cases, their permission will be needed.
In general, it is possible to give a share in real estate without the consent of the second owner. The main condition is that the share must be the owner’s personal property. Then he will not need any consent.
If the share is jointly acquired property, then consent from the second spouse will be required.
This applies only to donations. In case of paid transactions, permission is required in any case.
You can find out more about registering a deed of gift for a share in an apartment here, and how donation occurs and whether it can be done without a notary, read this article.
What gifts do you not need to pay tax on?
According to Russian law, not all gifts need to be shared.
- Money . If you receive a cash gift, the government cannot tax you.
- Off the list. If you were given an item that does not qualify as a taxable gift. This is not an apartment, not a car, not a share. Then you can sleep peacefully and not think about taxes.
- From relatives. There is no need to pay tax when donating an apartment between close relatives. You will be exempt from the duty if the apartment was given to you by the husband with whom you are officially married. The same goes for the wife. In addition, the tax will not affect gifts from children, parents, grandparents, siblings and half-siblings.
That is, if a father gives his daughter an apartment, none of them will pay the fee. And if the property passes from uncle to niece, the transaction will be subject to tax.
Will
The third option to transfer real estate to your daughter or son is to bequeath it. In this case, the apartment becomes the property of the son or daughter after the death of the person. To do this, the document must be notarized. In rare cases, other persons act as a notary. For example, it is quite acceptable to have a will certified by the head physician of a nursing home or the head of a prison. The execution of the will must be recorded by the same notary who drew up the will. The positive aspect of this method is that the entire inherited living space belongs to the heir and cannot be divided.
Peculiarities
There is a possibility that other relatives who have an obligatory share in the inheritance may lay claim to the property. These include disabled minor children, spouses, and parents. In this case, you can register the apartment under a purchase and sale transaction or as a gift.
It must be remembered that the testator can revoke his will at any time without giving a reason.
When drawing up a will, a testamentary refusal may be issued. For example, an heir receives ownership of a house or apartment, but on the condition that another person will live in the same living space during his life or the period specified in the will.
When selling real estate, the second person (legatee) will be able to live in this living space. Eviction of such a person is possible only with his voluntary consent.
If there are minor children, the testator is obliged to indicate them in the document.
Realtors and lawyers prefer not to work with apartments that have been inherited. This is explained by the fact that other heirs who suddenly arise may lay claim to such real estate.
How to pay tax on a gift?
First of all, you enter into a gift transaction and draw up an agreement. Once all the documents have been submitted and you have the keys, we move on to taxation. To return 13% to the state, you need to submit a 3-NDFL declaration to the tax authorities. The document form can be found on the Federal Tax Service website. The next stage is submitting the declaration to the tax office according to registration. This can be done by visiting the inspectors in person, or by sending documents by mail.
Along with the declaration, you will need to provide a passport, a gift agreement, as well as a document on the ownership of property - an extract from the Unified State Register of Real . You can receive it both in paper form and electronically. Both options are legally binding.
Service No. 2 - submission of a gift agreement for registration of the transaction
Now the notary must submit the notary agreement for registration with the rest of the documents HIMSELF AND FOR FREE, because this is already included in the service for certifying the transaction. Notaries have such responsibilities since February 2021 on the basis of Art. 1 of Federal Law dated August 3, 2018 N 338-FZ. This law excluded the notary's tariff from Art. 22.1 Fundamentals about notaries, and there he added to the 2nd paragraph - that a notary does not have the right to charge money for additional legal services. Explanations of the Federal Notary Chamber - link.
Participants in the transaction must pay the notary only the state fee for registering the transaction - 2000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has set a discount of 30% - you only need to pay 1,400 rubles. According to the law, the state fee is paid by the donee, because he is the beneficiary, but in practice the notary doesn’t care who gives the money.
After the transaction is registered in Rosreestr, the donee will become the new owner of the share. The documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.
Of course, the parties can refuse and submit the agreement for registration themselves. You will also have to pay 2000 rubles. for state duty.
Where can I order an extract from the Unified State Register of Real Estate?
A paper statement can be ordered from the MFC or contacted directly by Rosreestr. To do this, you need to come to the branch in person, fill out an application and leave your personal data.
Important! You will have to wait 5-9 days for the USRN extract on paper. If you want to receive a document urgently, then the electronic version is suitable.
You can order it using the EGRN.Reestr service. In order to find out the necessary information, you do not need to provide any information other than the address of the apartment or its cadastral number. The finished answer will be sent to you by email. Order an extract from the Unified State Register in advance, before you send the declaration to the tax office. It will help you avoid misunderstandings when determining the amount of tax.
How to determine the price of a donated apartment and the amount of duty?
- Firstly, if the cost of the apartment is specified in the gift agreement, then it will be the starting point for the tax.
Important! The specified figure must be at least 70% of the cadastral value. If inspectors consider the price to be too low, they have the right to demand payment of tax at market value.
- Secondly, if they give you part of the apartment. Then 13% will be calculated from the value of the donated share of real estate .
- Thirdly, if the cost of the apartment is not specified in the contract, then its price will be determined by the cadastral value. Because it is closer to the market one. Some citizens may consider it too high and enter into a dispute with the tax authorities. To do this, you need to find out the cadastral value of the apartment in advance. This is where the USRN extract comes in handy. Order it electronically and be fully prepared. The USRN extract may also be useful if you decide to check the apartment that was given to you.
How to issue a deed of gift for a nephew or niece in 2021
A gift agreement between uncles, aunts, nephews and nieces is drawn up in accordance with generally accepted rules that apply when making similar transactions and concluding other civil law agreements. For example, most deeds of gift, the subject of which is movable property or cash, can be formalized orally (Article 574 of the Civil Code of the Russian Federation). At the same time, in certain cases such agreements must be drawn up in simple written, and even notarial forms.
Expert opinion
Oleg Ustinov
Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.
Based on the information specified in paragraph 2 of Article 574 of the Civil Code of the Russian Federation, a deed of gift in favor of nephews must be drawn up in writing if the property benefits being given require state registration (for example, donation of a house or car, according to Article 131 of the Civil Code of the Russian Federation), as well as in in cases where a consensual donation agreement is drawn up between the parties, involving the donation of an object specified in the contents of the agreement in the future.
In addition to the form of the contract, when preparing it, it is very important to take into account the requirements set by the legislator for the content of the document. The main requirement is the so-called condition on the subject (for more details, see Article 432 of the Civil Code of the Russian Federation). To comply with it, it is enough for the donor to reflect in the content the basic and individual qualities, properties and characteristics of the gift that distinguish it from among similar objects.
If the parties draw up a contract of promise of gift, in addition to the mandatory simple written form, the agreement must necessarily contain the will of the donating party to transfer the property to the donee within a specified period of time (according to paragraph 2 of Article 572 of the Civil Code of the Russian Federation). in addition, lawyers recommend including in the document the method of transferring the gift, the timing of the contract, conditions, as well as information about the papers transferred with the object and the representatives of the parties (if any).
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In the event that the object of the gift in favor of the nephews is a piece of real estate, the parties need to agree on which of them will be responsible for the re-registration of property rights, as well as on who will bear the costs associated with this procedure. The actual transfer of the gift in favor of a nephew or niece, in this case, is formalized by drawing up a deed of transfer (Article 556 of the Civil Code).
Moreover, if the donor is aware of non-obvious shortcomings or defects of the object he is transferring, in accordance with the provisions described in Article 580 of the Civil Code of the Russian Federation, he is obliged to list such in the contract he draws up. Otherwise, if such defects cause material or physical damage to the recipient in the future, responsibility for this may fall on the donor.
Is it worth checking the donated apartment?
Many citizens are afraid that there may be problems with their new apartment. It is unlikely that the people who give you real estate will wish you harm. But it's still worth checking. In order not to receive a broken trough or housing with debts instead of a gift, protect yourself in advance.
Order an extract from the Unified State Register of Real Estate . With this document you can find out the history of the owners of the apartment, as well as all current owners. In addition, you will understand whether there are any encumbrances on the property.
For example, property may be pledged. If the donor is not a person close to you, this is a reason to think about it. Maybe the room in the communal apartment that he decided to give you is a burden to him and there are a lot of debts on it. He can't sell it. Therefore, it is easier to donate real estate than to pay huge sums for it.
Or, for example, the apartment had a mortgage . Its former owner believed that he had paid the housing court in full, but was late and forgot about it. Penalties grew and became a debt on the property. If you do not check the housing according to the documents in advance and register the property yourself, there is a risk that your gift will be followed by a huge tail of your debts.
Arbitrage practice
Challenging a gift agreement is an extremely complex procedure that requires extensive experience and legal knowledge.
Not all donors succeed in returning donated property, but there are real decisions in which the courts declared DD invalid and returned valuables to the former owners:
- Decision No. 2-1146/2019 2-1146/2019~M-654/2019 M-654/2019 dated July 30, 2021 in case No. 2-1146/2019;
- Decision No. 2-1851/2019 2-1851/2019~M-1711/2019 M-1711/2019 dated July 17, 2021 in case No. 2-1851/2019;
- Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 .
Legal advice: if you want to challenge the deed of gift, you will have to prepare in advance all the documents and evidence confirming the grounds for annulment of the transaction, as well as find witnesses in your favor.
What happens if you don’t pay the fee to the state?
- If you fail to submit your return on time. This will result in a monetary penalty. The violator will be fined 5% of the tax for each overdue month. But the sanction should not exceed 30% of the total amount.
- Donation tax was not paid on time. First of all, for such a violation you will be charged a penalty for each day of delay. Its size is 1/300 of the refinancing rate of the Central Bank of the Russian Federation. The countdown will begin on July 16. In addition, the violator will face a fine of 20% of the tax.
Important! You can only be fined if the inspectors have sent a notice of delay. If you realized that you did not pay the duty before the tax authorities, pay off the debt and penalties as soon as possible. Then no one can punish you.
Text: Ksenia Antonova
