Is gift tax due?

The donor does not pay tax Who does not pay tax when receiving a gift Who pays tax when receiving a gift Amount of gift tax Deadline for payment of gift tax How to determine the value of a gift

When it comes to gifts, especially expensive ones, questions naturally arise: is a gift considered income and is it necessary to pay gift tax? Who should pay the tax? Donor? Gift recipient? If tax is due, then on what amount is it paid? Are there legal ways to avoid paying or reduce taxes?

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The donor does not pay tax

Let's decide once and for all - the donor does not have to pay gift tax. You can safely dispose of your property - donate money, real estate, cars, part of a business - with this procedure you do not have any responsibility to the tax authority, and you are not obliged to notify anyone about your good deed.

And this is logical. By making a gift, you do not receive income, and if so, then we cannot talk about income tax.

What about those who received a gift? Let's figure it out.

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Main features of a property donation agreement

According to the provisions of Article 574 of the Russian Civil Code, the form of a donation agreement for a house or other real estate (movable) property can be either written or oral. Also, the legal act stipulates several conditions under which the contract must be concluded exclusively in writing.

Concluding a gift agreement in writing is mandatory in the following cases:

The donor's party to the transaction is an enterprise, organization or institution, and the value of the subject of the agreement is more than three million rubles.
The contract states that the donor is obliged to fulfill the terms of the transaction in the future (for example, upon the occurrence of a certain event).
The subject of the transaction is an immovable property object, contracts with which must be registered with a state body (Cadastral Chamber, etc.).

A deed of gift in the generally accepted understanding is a gift in writing. Thus, in the minds of citizens, these two concepts are correlated in the form of form and content. This is fundamentally incorrect, since the term “deed of gift” is not fixed in any regulatory legal act of Russian legislation.

Consequently, the deed of gift and the agreement on donation of property are related as private and general due to the fact that the agreement can be concluded orally or in writing, and the deed of gift is considered a written document. This is the only difference between a deed of gift and a gift agreement.

Who does not pay tax when receiving a gift?

There are situations when you do not need to pay personal income tax when receiving a gift. This is stated in paragraph 18.1 of Art. 217 Tax Code of the Russian Federation. That is, the law allows for non-payment of tax when receiving a gift despite the fact that income was received.

When you don't have to pay gift tax:

1. The gift you received is money or any property, except real estate, vehicles, stocks, shares, shares. Basis: para. 1 clause 18.1 art. 217 Tax Code of the Russian Federation.

Example:

Friends chipped in and gave you and your fiancée a trip to a tropical island. You do not need to pay tax on the cost of travel, since this gift does not apply to real estate or other restrictions mentioned in the Tax Code.

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2. The gift was given by a close relative or family member

Close relatives, according to clause 18.1 of Art. 217 of the Tax Code of the Russian Federation and Art. 14 of the Family Code of the Russian Federation, these are relatives in a direct ascending and descending line: parents and children; grandparents and grandchildren; full and half brothers and sisters.

If you receive any gift from a close relative, you are exempt from paying tax. Please note - this applies to absolutely all gifts, including real estate, cars, stocks, shares, shares, money, etc. Basis: para. 2 clause 18.1 art. 217 Tax Code of the Russian Federation. Read more in our article “Gift Tax to a Relative”.

Example:

The grandfather gave his grandson a car. The grandson does not have to declare the gift and pay tax, since the grandfather and grandson are immediate family members.

Example:

The brother gave his sister an apartment. The sister does not have to pay gift tax because the brother and sister are immediate family members.

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Regulatory regulation of the concepts of deed of gift and agreement on donation of things

Legal relations arising between the parties when concluding a gift agreement for an apartment or other real estate (movable) property are regulated by Chapter 32 of the Russian Civil Code.

According to the provisions of Article 572 of the Code, a gift is a transaction that provides for the unilateral obligation of a person (donor) to transfer free of charge to another person (done) some type of property.

According to the legislation, a donor is considered a person who, on his personal initiative, has an obligation to give his property to another person (citizen, organization or state) without presenting counterclaims. The donee is considered to be the person who receives the object of the donation into ownership along with all real rights to it.

A gift agreement can be concluded for a car or any other thing owned by the donor. Along with the property, the donor also transfers all property-type rights to it. In addition, when concluding a transaction, it may be possible to provide for the transfer of all property obligations related to the subject of the gift (for example, repayment of a loan for property, etc.).

An essential condition of a gift agreement is that the donor has no counterclaims, and the donee has no counterobligations arising from the content of the agreement.

Who is required to pay tax when receiving a gift?

A gift is an economic benefit in kind or cash. Or, in other words, income. If so, then you must pay gift tax. Reason: Art. 41 Tax Code of the Russian Federation, clause 1, art. 210 Tax Code of the Russian Federation.

When you must pay gift tax:

1. If the donor is not included in the list of close relatives from clause 18.1 of Art. 217 of the Tax Code of the Russian Federation and gave you real estate, a vehicle, shares, shares or interests

In this case, you prepare a 3-NDFL declaration, submit it to the tax office at your place of residence and pay the gift tax.

Example:

The mother-in-law gave her son-in-law an apartment. The son-in-law will have to pay gift tax, since the mother-in-law and son-in-law are not included in the list of immediate relatives from clause 18.1 of Art. 217 Tax Code of the Russian Federation.

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Example:

An uncle gave his niece a car. Since the uncle and niece are not included in the list of immediate relatives from clause 18.1 of Art. 217 of the Tax Code of the Russian Federation, the niece will have to pay tax on the gift of a car.

Example:

Your friends changed their minds about sending you and your fiancée to a tropical island and gave you an apartment. It would be better if they stopped traveling, since the donated apartment will have to be declared and income tax paid. Reason: friends are not included in the list of immediate relatives from clause 18.1 of Art. 217 Tax Code of the Russian Federation.

2. If you received a gift from a legal entity or individual entrepreneur and the value of the gift is above 4,000 rubles

Moreover, this can be either one gift or several that you receive during the year for a total amount of 4 thousand rubles. Reason: clause 28 of Art. 217 Tax Code of the Russian Federation. The gift can be either money or property. The tax is paid not on the entire value of the gift, but on the amount exceeding 4 thousand rubles.

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Example:

The contractor gave you perfume worth 7 thousand rubles. You will have to pay tax on an amount exceeding 4 thousand, that is, on 3 thousand rubles: 13% x 3,000 = 390 rubles.

Example:

The dealer gave you a bottle of champagne worth 2 thousand rubles for the New Year. Since the gift is less than 4 thousand, you do not have to pay tax.

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Example:

During the year, the employing company gave you several gifts, each of which cost less than 4 thousand rubles. But by the end of the year, the total cost of the gifts was 25 thousand rubles. The accounting department must withhold personal income tax from you for an amount exceeding 4 thousand: 13% x (25,000 - 4,000) = 2,470 rubles.

If you received a gift from your employer, the accounting department will independently process the transfer of personal income tax to the state budget and will withdraw this amount from you at the next salary payment.

If you received a gift from a third-party organization, and it does not have the ability to withdraw personal income tax from you, you will have to pay the gift tax yourself.

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How can you avoid tax?

If you received an apartment, house, transport, shares/shares as a gift from a non-close relative, then the question arises: is it possible to somehow avoid the tax or at least reduce it?

Unfortunately, there are no obvious solutions (such as, for example, tax deductions when selling property). At the same time, it should be mentioned that people often resort to “non-standard” / “black” methods:

1) Donation through a close relative. For example, the gift of an apartment by an aunt to her niece is subject to income tax. But if the aunt gives the apartment to her sister, and she, in turn, gives it to her daughter, then she will not have to pay tax. As a result, the donation will occur, and there will be no income tax.

2) Concluding a fictitious purchase and sale agreement. If an aunt wants to give an apartment to her nephew, she can conclude with him not a gift agreement, but a purchase and sale agreement. In this case, the nephew will not have income taxes, but the aunt:

will be exempt from tax if the apartment has been owned by her for more than 3 or 5 years;
will have to pay tax on income from the sale of an apartment if the apartment has been in her ownership for less than 3 or 5 years (depending on the date of purchase of the apartment). However, in this case, the aunt will be able to take advantage of the standard deduction (1 million rubles) or a deduction for the costs of purchasing this apartment.

In any case, when drawing up a purchase and sale agreement, the income tax will be less than when drawing up a gift agreement.

Gift tax amount

Having received a taxable gift, you will have to pay 13% of its value to the state treasury.

Example:

Your cousin gave you an apartment worth 3 million rubles. Since the cousin is not on the list of immediate relatives, you will have to fill out a 3-NDFL declaration and pay income tax: 13% x 3,000,000 = 390 thousand rubles.

Example:

The father-in-law gave his daughter-in-law a car worth 1 million rubles. The father-in-law and daughter-in-law are not immediate relatives, so the daughter-in-law is required to declare the gift and pay 13% of the value of the gift: 13% x 1,000,000 = 130 thousand rubles.

Example:

The partner decided to increase your share in the company and gave you shares worth 10 million rubles. You will have to file a 3-NDFL declaration and pay a gift tax - 13% of the value of the donated shares: 13% x 10,000,000 = 1.3 million rubles.

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Sample agreement for donating an apartment in 2021

State duty amount

Registration of any agreements on the transfer of real estate is subject to state duty. According to paragraph 21 of Art. 333.33 of the Tax Code of the Russian Federation, the amount of the fee for registration or renewal of registration of the right to own property is equal to 2 thousand rubles for individuals.

When registering the right to own real estate, a legal entity. person will need to pay 22,000 rubles.

When do you have to pay gift tax?

The 3-NDFL tax return must be submitted to the tax office at the place of residence by April 30 of the following year. If you received a gift in 2021, you must declare this income by April 30, 2021. Grounds: clause 3 of Art. 228, paragraph 1, art. 229 Tax Code of the Russian Federation. The tax must be paid by July 15 of the same year. Grounds: clause 4 of Art. 228 Tax Code of the Russian Federation.

Example:

In 2021, the mother-in-law gave her son-in-law an apartment. The son-in-law must pay gift tax, since the mother-in-law and son-in-law are not included in the list of immediate relatives from clause 18.1 of Art. 217 Tax Code of the Russian Federation. Until April 30, 2021, the son-in-law needs to prepare documents, including the 3-NDFL declaration, and submit them to the tax office. The tax must be paid by July 15, 2021.

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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

Terms of the transaction

It does not matter what the subject of the agreement will be. Donating a car, apartment or other value:

· absence of encumbrances – there is no pledge or seizure (about donation with encumbrance in a separate article);

· both participants are capable citizens, if one is a minor, the participation of a guardian is mandatory;

· donor – the legal and main owner of the property;

· all actions are performed by participants voluntarily;

· participants – individuals, especially the recipient;

· Only an adult can give a gift.

Failure to comply with any of the above conditions guarantees the possibility of legal challenge to the procedure.

Is it possible to challenge a deed of gift?

Cancellation of a deed of gift if there are disagreements between the parties is a problematic task. By mutual agreement, they can cancel the transaction before the transfer of the gift by formalizing an agreement with the DD.

Contestation is usually required if it is necessary to cancel the DD unilaterally.

This is possible for one of several reasons:

Art. 578 of the Civil Code of the Russian Federation “Cancellation of donation”

causing harm to the health and life of the donor or his relatives by the recipient;
dishonest attitude towards the donated property, entailing the risk of irretrievable loss if the gift is of non-property value to the former owner;
intentional murder of the donor by the donee (disputed by the heirs);
signing a DD under the influence of delusion, threats, blackmail, violent actions on the part of the donee.

The creditors of the donor conducting business activities can also cancel the transaction if it was completed 6 months before the citizen was declared bankrupt by decision of the arbitration court.

Arbitrage practice

It is difficult to challenge a deed of gift, but with good legal support, the chances of a positive result increase, and this is confirmed by several decisions made in favor of the plaintiffs:

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 ;
Decision No. 2-44/2019 2-500/2018 dated June 28, 2021 in case No. 2-44/2019;
Decision No. 2-768/2019 2-768/2019~M-272/2019 M-272/2019 dated June 28, 2021 in case No. 2-768/2019.

Important! If the court revokes the deed of gift, the defendant undertakes to return the gift to the plaintiff in its original form. If the gift cannot be delivered, you will have to compensate for its cost.

List of persons who do not have the right to donate shares:

Minor children;
Citizens who are undergoing treatment, maintenance and education in hospitals, nursing homes, boarding schools, and orphanages. Their relatives will also not be able to give a share to anyone;
Representatives of young children and incapacitated citizens;
Owners of a share of an apartment pledged to credit institutions (the bank gives permission only in exceptional cases);
Owners whose share is less than the minimum amount established by law. We are talking about the minimum living space per person. The norms are prescribed in regional regulations and vary from 8 to 15 square meters. m. In this case, you cannot either sell a share in the apartment or donate it as a gift;
Commercial structures that decided to make a gift transaction among themselves. But a legal entity can make a similar gift to an individual and vice versa.

Registration of a deed of gift: step-by-step procedure

Performed as standard:

1. The participants meet and discuss the nuances of the agreement. They visit a notary together.

2. An agreement is written there , which indicates all the details of the transaction, data of the parties, characteristics of the property and the time of occurrence (regular or deferred).

3. The specialist tells clients what documents they should collect.

4. After signing the finished deed of gift, the participants register it in Rosreestr , supplementing it with the necessary papers.

Important! Registration can be carried out by a notary instead of clients.

Required documents:

· donation agreement (3 copies, 2 – to participants, 1 – to Rosreestr);

· passports of the parties;

· acceptance certificate;

· application for registration;

· bank permission – if the subject of the agreement is still mortgaged;

· certificates emphasizing the relationship of the participants (marriage, birth);

· Marriage certificate of participants (when available);

· documents of title of the donor to the property;

· consent of the spouse to transfer property (if any, drawn up in writing and certified by a notary);

· BTI extract;

· personal account (from the apartment);

· cadastral passport;

· consent of the remaining owners (if the property is shared);

· consent of guardianship (the participant in the transaction is a minor, or his interests are affected);

· registration certificate of housing.

These papers are needed to transfer real estate - a house, apartment, garage or other building.

The transfer of the car takes place in 3 simple steps . Previously, in order to give someone a car, the owner had to remove it from the general traffic police register.

Legislative changes that occurred in 2013 changed the procedure:

1. Collection of papers . The client visits the notary and evaluates the car.

2. The participants draw up and then sign an agreement.

3. Carrying out re-registration of property. The donee has 10 days , otherwise the transaction is automatically terminated.

Pay off transport tax debts (if any) and fines in advance to free the car from all encumbrances.

Package of papers:

· passports of the parties;

· vehicle registration certificate;

· certificate of state registration of the car;

· OSAGO policy;

· a certificate confirming the absence of any encumbrances on the car;

· notarized written consent expressed by the spouse.

There is no need to register a deed of gift where the subject of transfer is a car. It is enough for the recipient to re-register the vehicle in his name at the State Traffic Safety Inspectorate.